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Unintended consequences? Could Roberts have finally moved Kennedy firmly into the conservative block on SCOTUS?

By: gawken (Diary)  |  July 5th, 2012 at 03:03 PM  | 

RESIZE: AAA

Disclaimer: I am NOT a lawyer. And unlike Obama, I make no pretense at being a constitutional scholar. And I have never, ever stayed at a Holiday Inn Express.

After reading and listening to several superb conservative commentaries on the Court decision on Obamacare, it seems to be a consensus that the four dissenting Justices ( Alito, Kennedy, Scalia, and Thomas) all but excoriated Roberts for his flawed opinion.

Prior to the release of the decision, the conventional wisdom/smart money from all sides of the political spectrum was that, as in so many previous 5-4 decisions, it all came down to which side of the bed Kennedy got up from on any particular day. Often deemed to be the second single most powerful person in the country, Kennedy was viewed as somewhere between a libertarian and a “squish”, depending on how he voted on the particular issue before the Court.

If indeed the dissenting opinion ( to which all four Justices contributed) is as scathing as has been described, and which appears to be somewhat outside the norm for Justice Kennedy ( based on his past opinions); then is it reasonable to wonder if Roberts’ last minute change of heart and mind. and resulting incomprehensible opinion, might finally have brought Mr. Justice Kennedy to his senses?

Conservatism has long, for the most part, found common cause with libertarians, except for those occasions when we on the right wonder if they have truly and finally lost their minds.

Winston Churchill ( reportedly while stepping naked from his bath in the presence of FDR) remarked that “nothing quite concentrates the mind like the realization that one is to be hanged in the morning..”

There are many cases of great import that the Court is expected to take up, and decide, in the next term. Possibly Kennedy’s mind has indeed been concentrated and focused by the realization that Roberts has in effect performed a legal lynching of our Constitution.

The libertarian in him must thus be truly appalled by this decision. If so, he may finally realize that the Court can’t continue to split hairs. Yes, elections are vital, and they do have consequences, and we must defeat Obama this November, but the Court can no longer hide behind a flimsy pretense of wanting to avoid appearing “politically motivated.”

If Roberts’ decision has finally caused Kennedy to find common cause with his four conservative brethren, then we may well see truly amazing decisions in future terms. And if Roberts reverts to the norm, then these will be all be 6-3, possibly 7-2 decisions.

And all this may well occur BEFORE President Romney gets to appoint, and a GOP Senate confirm, one or two justices.

COMMENTS

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  • trimulchio

    Justice Thomas pushed Justice O’Coonor Left. If so, you could be right about Justice Kennedy.

  • trimulchio

    Jan Crawford indicates that Justice Thomas’s strong conservatism pushed SDO Leftward.

    Justice Thomas is too often underestimated.

  • trimulchio

    Justice, I think you want to look to Justice Thomas, who has been consistent and has dealt ably with Federal Common Law decison that often seem like after-thoughts to others on the Court.

    • Common_Cents

      CJ Roberts should be stripped of the distinction.

      He can keep the CJ, but the reference will be Cowardly Judas, not Chief Justice

      • Melody Warbington (rwm52)

        and I would very much like to see him as Chief. I’d settle for Scalia, and I like Alito, but I’d prefer to see a few more decisions from him first.

    • davenj1

      More than Scalia, Thomas is the most consistent conservative voice in the Supreme Court. His decisions are very well-reasoned and consistent, even if you don’t agree with the outcomes. At least you can see a straight, clear line to a sound conservative judicial position. I think it was a concurring opinion in some case, but his history of the civil rights acts after the Civil War should be required reading in US History classes, especially as concerns recently freed slaves.

      • trimulchio

        Stevens. Justice Thomas seems to understand the intent, which few others have even bothered with. A great Associate Justice . . . .

  • tnfriendofcoal101368

    If you are expecting Justice Kennedy to be a friend on issues such as gay marriage or abortion; he will always disappoint you, always. He sees the consensus conservative side of both as an unconstitutional encroach on individual liberty. For this reason, he was highly critical of the individual mandate in oral arguments and in his dissent. He was also the driving force along with Scalia in dragging Roberts from a very narrow opinion on Citizens United (which would have ruled the piece of McCain-Feingold that prohibited the anti-Hilary movie 90 days before an election unconstitutional to declaring McCain-Feingold itself unconstitutional). He is also pretty consistent on federalism. In fact, he wanted to throw the entire mess of Obama Care in the trash because he saw it as an unconstitutional encroachment on states’ 10th amendment rights. In fact, the story of Obama Care ruling might just be Roberts had buyers remorse on being dragged into a wider ruling on Citizens United and refused to go there on Obama Care.

    To understand Kennedy, individual rights as he sees them, first and foremost, federalism, second, look for a consensus third. If you are expecting a Scalia strict constructionalist, prepare to be disappointed when DOMA comes before the court.

  • http://www.flaliberty.org scorpio0679

    a decidedly liberal justice. In fact, if you look at his opinions, he trends socially liberal but libertarian-conservative on separation of powers, federalism, and individual liberty. He was never the same type of ‘swing vote’ that O’Connor was, which is why the Roberts court has overall come out with some very bright line conservative decisions (e.g., Citizens United).

    O’Connor was always willing to substitute her own policy judgments for the Constitution. Kennedy doesn’t seem to do that, and many of Kennedy’s seemingly liberal votes usually at least make a real effort at rooting it in the text of the Constitution. O’Connor never felt such a constraint. In law school I remember reading many of O’Connor’s opinions, her most important from what I recall involved the Establishment Clause, and wondering how the heck she came up with her analysis. She would just pull “tests” out of thin air.

    Anyway, I’ve never been an “opponent” of Kennedy and honestly I had no question that he would vote to strike down Obamacare’s mandate. I never saw this coming from Justice Roberts, though. What a huge disappointment.

    • davenj1

      He is a big proponent of “international standards.” Sometimes, his opinions go off the deep end here and it is usually Scalia who has to remind him his job is to interpret the US Constitution, not the Geneva Conventions or UN Charter. And yes, O’Connor would pull things out of thin air. But, her undue burden standard is certainly better reasoned than Blackmun’s standard in Roe.

  • otis1

    They say,our SCOTUS JUSTICES have a job for life so they can not be swayed from their CONSTITUTIONAL DUTY,their only freaking job,hows that working out for u.s.? We now have possibly only three people on any given day that appreciate our doccument when it is rightfully dead,that so many died for to on our behalf,to keep it non-breathing/living/and flexible???

    The DEMS have successfully loaded the lower courts for years with roadblocks to keep their UNCONSTITUTIONAL CRAP from getting to the SCOTUS too rapidly. And now once it finally arrives,it faces a SCOTUS full of UNCONSTITUTIONAL JUSTICES, that KING GEORGE would have loved.