The Power of the SCOTUS Part VI - Roberts rules disorder

[St. Clown]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

Marriage has the possibility of children which makes it unique among "contractual relations". I believe that is why (asking other reasons) the State has different rules for breaking a painting contact and dissolving the marriage bond.

A man and a woman on a one-night stand stand have the possibility of children and they work out these issues in courts, many times across state lines. What confuses marriage issues is that people don't usually enter into that contract with an end game in mind other than "until death do you part." When you take the duration of a marriage, and then try to split up assets obtained while married, that's where it gets messy.

 

[unofan]

Don't let a Dartmouth person hear you say that. It is a small college, and yet sir there are those who love her.

Psst...I am a Dartmouth person...

 

[Kepler]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

Psst...I am a Dartmouth person...

I even knew that. Senior moment.

 

[theprofromdover]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

Don't let a Dartmouth person hear you say that. It is a small college, and yet sir there are those who love her.

Old Danny Webster loved it!

 

[burd]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

A man and a woman on a one-night stand stand have the possibility of children and they work out these issues in courts, many times across state lines. What confuses marriage issues is that people don't usually enter into that contract with an end game in mind other than "until death do you part." When you take the duration of a marriage, and then try to split up assets obtained while married, that's where it gets messy.

Even messier when, as in many states, you split up the assets owned prior to the marriage.

 

[FreshFish]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

What confuses marriage issues is that people don't usually enter into that contract with an end game in mind other than "until death do you part." When you take the duration of a marriage, and then try to split up assets obtained while married, that's where it gets messy.

which is why pre-nuptial agreements are generally recommended for people entering marriage with substantial assets / and or high earnings potential. and even then pre-nups are challenged as having been signed "under duress" (which upon closer examination generally turns out to be "if I didn't sign it, he wouldn't marry me." that's not "duress", that's the whole point!)

 

[unofan]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

So SCOTUSBlog has been using a tag team approach to provide semi-live commentary on the ACA arguments today. Essentially they're leaving at intervals to report what's happened up to that point.

So far the Justices are clearly ideologically aligned with Kennedy as the swing vote. Ginsburg, Kagan, Sotomeyer, and Breyer all questioned the challengers staunchly, while Alito and Scalia bolstered them. Roberts hasn't said much of anything through the first half.

Kennedy clearly doesn't like the fallout that would happen if the challengers win, but until we hear about the questions he gives the Solicitor General, it's tough to view him solidly with the liberal wing at this point.

 

[FlagDUDE08]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

So SCOTUSBlog has been using a tag team approach to provide semi-live commentary on the ACA arguments today. Essentially they're leaving at intervals to report what's happened up to that point.

So far the Justices are clearly ideologically aligned with Kennedy as the swing vote. Ginsburg, Kagan, Sotomeyer, and Breyer all questioned the challengers staunchly, while Alito and Scalia bolstered them. Roberts hasn't said much of anything through the first half.

Kennedy clearly doesn't like the fallout that would happen if the challengers win, but until we hear about the questions he gives the Solicitor General, it's tough to view him solidly with the liberal wing at this point.

Clarence Thomas asleep or something?

 

[unofan]

Clarence Thomas asleep or something?

He never speaks at oral arguments, though it is long rumored he passes questions to Breyer to ask on his behalf.

 

[unofan]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

http://www.scotusblog.com/2015/03/criticizing-justices-state-court-bars-same-sex-marriages/

Also, Alabama's Supreme Court apparently really wants its own Wallace moment.

And then they wonder why the rest of us think they're numbnuts.

 

[unofan]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

The transcript is out. Roberts stayed pretty silent the whole time. Alito looks like a sure vote for the challengers. Scalia and Thomas probably are too, but not as solidly as Alito.

Beyond that though, not sure they have a 4th vote, let alone a 5th. Tough to read Roberts when he was so quiet, but it's tough to see him buying this argument after the last go around 2 years ago. And Kennedy seemed like he really didn't buy the challenger's arguments.

I'm gonna say 6-3 upholding the act.

 

[bronconick]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

Justice Scalia was thinking along similar lines. If the court’s ruling turned out to be so disastrous, he said, “you really think Congress is just going to sit there?”

“This Congress?” Mr. Verrilli replied incredulously. The courtroom erupted in laughter

 

[Kepler]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

The transcript is out. Roberts stayed pretty silent the whole time. Alito looks like a sure vote for the challengers. Scalia and Thomas probably are too, but not as solidly as Alito.

Beyond that though, not sure they have a 4th vote, let alone a 5th. Tough to read Roberts when he was so quiet, but it's tough to see him buying this argument after the last go around 2 years ago. And Kennedy seemed like he really didn't buy the challenger's arguments.

I'm gonna say 6-3 upholding the act.

Hope you're right. From a purely pragmatic point of view, the GOP is praying it won't be overturned. That way they'll have a perennial tar baby even after Obama leaves office, plus they won't ever be called on their BS when they have no alternative.

One of those rare times that everybody wins: millions get health care, Obama gets his legacy, the GOP gets its poutrage, and Scalia gets to clutch his pearls.

 

[FreshFish]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

Roberts in 2012 after he declared PPACA unconstitutional under the Commerce Clause, and then let it stand anyway by re-casting it as constitutional under the power to levy a tax:

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.

If he holds true to that formulation, he'd vote with the challengers. Big if however. It sounds like every liberal justice, and Kennedy as well, is saying "even though Congress wrote the law one way, we'll be content to stand idly by while the administration re-writes it as they please, because we don't want to make waves and deal with the political consequences of ruling otherwise."

 

[unofan]

If he holds true to that formulation, he'd vote with the challengers.

if you want to go down that route, then Scalia and Thomas should side with the government because they have both recognized, just a month or two ago, that statutes cannot be read in isolation and must be taken in context. Which is exactly what the government is arguing and what the challengers are claiming shouldn't be done.

Roberts likewise can rule for the government for the exact same reason you always cite when trolling...err...claiming that he actually struck it down last time: when a statute can be construed constitutionally, the courts should strive to do so.

 

[burd]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

if you want to go down that route, then Scalia and Thomas should side with the government because they have both recognized, just a month or two ago, that statutes cannot be read in isolation and must be taken in context. Which is exactly what the government is arguing and what the challengers are claiming shouldn't be done.

Roberts likewise can rule for the government for the exact same reason you always cite when trolling...err...claiming that he actually struck it down last time: when a statute can be construed constitutionally, the courts should strive to do so.

You're asking him to actually think about these decisions, uno.

 

[joecct]

Roberts in 2012 after he declared PPACA unconstitutional under the Commerce Clause, and then let it stand anyway by re-casting it as constitutional under the power to levy a tax:



If he holds true to that formulation, he'd vote with the challengers. Big if however. It sounds like every liberal justice, and Kennedy as well, is saying "even though Congress wrote the law one way, we'll be content to stand idly by while the administration re-writes it as they please, because we don't want to make waves and deal with the political consequences of ruling otherwise."

I think you've hit the nail right on the head n

 

[FreshFish]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

if you want to go down that route, then Scalia and Thomas should side with the government because they have both recognized, just a month or two ago, that statutes cannot be read in isolation and must be taken in context. Which is exactly what the government is arguing and what the challengers are claiming shouldn't be done.

Roberts likewise can rule for the government for the exact same reason you always cite ...claiming that he actually struck it down last time: when a statute can be construed constitutionally, the courts should strive to do so.

However, the constitutionality of the statute is not at issue here. At issue is whether it is being implemented as Congress authorized it. If the Executive branch can just willy-nilly decide to rewrite laws it doesn't like on its own, what's the point of having Congress at all? Why not just let the Executive issue all laws in the first place?

Scalia and Alito, it seems to me, have it right in this one case: if there is a problem with the way the law is drafted, Congress needs to rewrite the law.

 

[FreshFish]

Re: The Power of the SCOTUS Part VI - Roberts rules disorder

I have a really bad feeling about this.....



It seems to be shaping up 6 - 3 to uphold the government in King v Burwell, since the two most centrist jurists likely will be daunted by the magnitude of the supposed "turmoil and disruption" that purportedly would ensue if they did not read the law as written.

Theoretically, of course, the only appropriate constitutional remedy here is for Congress to amend the law. Just because one particular law is drafted with egregious carelessness, does not mean that a principle should be established that, whenever a law prove inconvenient, it should be "adjusted" to make it so, rather than legislatively amended as the Constitution requires. It reminds me of those comedies in which a couple thinks they are married and it turns out that the person who presided over their wedding ceremony lacked the statutory authority to perform marriages. "Yeah, maybe technically, but the practical consequences are too dire to contemplate" and so there always is a favorable resolution in the end that allows them to continue as a married couple. Same principle here: "since the Administration has already been handing out free money to people who technically didn't deserve it, just think of the mess it would create if we were suddenly to ask for it back."

That's a real sloppy legal argument, and a very compelling political and practical one. Also, it's pretty much a straw man: there is no possible way that Congress would fail to act. There is already a proposal out there that would work wonderfully well and command strong bipartisan support: extend the COBRA law to Obamacare and the exchanges, let them keep going for 18 months with a fixed expiration date at the end of that period. Scalia is right on that point. There is just such a proposal already drafted and with sponsors of both parties in both Houses ready to present it.

I expected better from Kagan, though. Before the oral arguments I was hoping that the decision would resemble the one on Medicaid expansion in NFIB v Sebelius, a 7 - 2 vote to overturn that part of the law. Absolutely no chance of that now.

I find it disheartening that "winning" or at least "avoid losing" are such high priorities these days, I miss a time when there was widespread agreement that principle and character were more important, since if you didn't maintain them steadily they would quickly lose their relevance. What a shame.

 

[unofan]

I have a really bad feeling about this.....



It seems to be shaping up 6 - 3 to uphold the government in King v Burwell, since the two most centrist jurists likely will be daunted by the magnitude of the supposed "turmoil and disruption" that purportedly would ensue if they did not read the law as written.

Theoretically, of course, the only appropriate constitutional remedy here is for Congress to amend the law. Just because one particular law is drafted with egregious carelessness, does not mean that a principle should be established that, whenever a law prove inconvenient, it should be "adjusted" to make it so, rather than legislatively amended as the Constitution requires. It reminds me of those comedies in which a couple thinks they are married and it turns out that the person who presided over their wedding ceremony lacked the statutory authority to perform marriages. "Yeah, maybe technically, but the practical consequences are too dire to contemplate" and so there always is a favorable resolution in the end that allows them to continue as a married couple. Same principle here: "since the Administration has already been handing out free money to people who technically didn't deserve it, just think of the mess it would create if we were suddenly to ask for it back."

That's a real sloppy legal argument, and a very compelling political and practical one. Also, it's pretty much a straw man: there is no possible way that Congress would fail to act. There is already a proposal out there that would work wonderfully well and command strong bipartisan support: extend the COBRA law to Obamacare and the exchanges, let them keep going for 18 months with a fixed expiration date at the end of that period. Scalia is right on that point. There is just such a proposal already drafted and with sponsors of both parties in both Houses ready to present it.

I expected better from Kagan, though. Before the oral arguments I was hoping that the decision would resemble the one on Medicaid expansion in NFIB v Sebelius, a 7 - 2 vote to overturn that part of the law. Absolutely no chance of that now.

I find it disheartening that "winning" or at least "avoid losing" are such high priorities these days, I miss a time when there was widespread agreement that principle and character were more important, since if you didn't maintain them steadily they would quickly lose their relevance. What a shame.

Concern troll sounds concerned.