I disagree with Hightower.

What you will find here is: a centrist's view of current events;
a collection of thoughts, arguments, and observations
that I have found appealing and/or amusing over the years;
and, if you choose, your civil contributions which will make it into a conversation.

He not busy bein' born, is busy dyin'. - Bob Dylan

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Monday, July 2, 2012

Civil Discourse and the ACA

You will see all sorts of interpretations of how Chief Justice Roberts was, in one way or another, scheming when he decided how he would vote in the ACA case.

I believe that for democracy to work we have to have a civil discourse and I believe that begins by assuming that the opposition has honorable motives.  That's right, even if in some cases they don't have such motives.

This case presented us with some good evidence that doing so is not foolish.

Many people think that judges do, and some people think that they should, cast their vote on the bench in the same way that a legislator votes:  Do I want this to become law?  That is not their job.  Their job is to keep the political branches inside the bounds of the Constitution.  As Roberts said in this case, "It is not our job to say whether it is a good law or whether it is a wise law."  Their job is to say whether the Constitution permits that law to be made.  There is no appeal beyond them which means that they are very powerful and it also means that it is imperative that they act with great restraint.

The ACA case presented good examples of judges making decisions that were contrary to what most people think is the way they would have voted if they had been in the legislature when the bill came up.
Roberts decision is well known.  But there was another decision which limited the federal government's power vis a vis the states.  Two of the liberals on the court ( Kagan and Breyer) voted with the 5 conservatives in saying that, if a state chose not to take advantage of the expanded Medicaid program, then the Federal Government could not withdraw funds from the original Medicaid program.  This was viewed as a victory for the conservative values of limiting federal power and maintaining federalism.

The AZ immigration case offered some other examples.

Perhaps at least one branch of the Government is stepping back from precipice of rancid partisanship.

But, as you know by now, I am a hopeless optimist.


  1. Well, Wayne, some centrist you are: In fact you sound a lot like Justice Stephen Breyer.

    Speaking to Jeffery Toobin several years ago in an interview for the New Yorker, Breyer said, "You have to assume good faith, even on the part of people with whom you disagree. If you don't assume good faith, it makes matters personal, and it makes it harder to reach a good result and, in my experience, it normally isn't even true. People do act in good faith."

    Since you agree with Breyer, I can only conclude that you are a wild-eyed liberal and committed socialist.

    Just kidding of course. Actually Breyer is one of my favorite Supremes, really thoughtful guy. (Oh snap, maybe I'm a wild-eyed liberal and committed socialist!)

  2. Some further evidence that Roberts' decision was basically centrist: On Huckabee's FOX program the other night, some state attorneys general expressed disappointment that ACA was basically upheld but they seemed particularly upset that Roberts (in their view) caved to the pressure from the President specifically and from the left generally.

    Roberts really is unpopular in some conservative quarters right now. Whether that makes his decision "centrist" in nature, well perhaps we can have another go-round on that on yellowarmadillos. But whatever he was up to seems to have been motivated by something beyond partisanship.