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The Supreme Court Justices. Image via Wikipedia

There are two major theories going around about the Supreme Court decision on Obamacare:

The first theory would mean that all the liberal celebration needs to stop.  The second would mean we have a Chief Justice who made a decision based on what people would think of him.  Neither option is very good, really.  But the most interesting interpretation I’ve heard is P.M. Prescott’s, which essentially states that what Roberts ruled was completely consistent with his pattern up to now.

I plan to do some more in-depth posts on the Supreme Court soon–the stuff I’ve been reading about the Court this past week is quite interesting.

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People are lauding Chief Justice Roberts for his decision.  It seems like he doesn’t like the law, but decided against overturning it because he felt there was not much of an argument for doing so.  Which is what Judges are supposed to do.  Don’t take my word for it, though.  Take this guy’s:

Anyway, it is rather funny that what saved the law was interpreting it as a “tax”.  The Democrats tried to desperately not to call it that, because people hate taxes, but in the end that is what it needed to be to stand.

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The RedState article I linked to in the previous post set me thinking. The author, “streiff”, drew an analogy between Supreme Court Justices and referees in sports. This, in conjunction with Obama’s claims about “judicial activism”, reminded me of the old joke about three baseball umpires talking about making calls:

Umpire 1: “I calls ’em like I sees ’em.”

Umpire 2: “I calls ’em like they is.”

Umpire 3: “They ain’t nothing till I calls ’em”

The thing is, the Supreme Court is all three umpires at once. If five of them see it as unconstitutional, then it is unconstitutional. And it’s not known if it’s constitutional or not until they rule on it.

Also, I don’t see how it’s ever possible to know if they’re being “activist judges” or not. Supposing they strike down the health-care law, the ruling will be couched in terms of how they think it violates the Constitution. Now, since this is all a matter of interpretation, it’s impossible to know if they really interpret the Constitution that way, or if they just struck it down because they oppose liberal laws. How can you ever prove the charge of “judicial activism”? Hey, you judges and lawyers out there, I’m asking.

The other cool thing in the RedState article is its mention of the case of Marbury v. Madison. It was the first time that a law was declared unconstitutional. It’s a fascinating case for a host of reasons, but of interest at the moment is that Thomas Jefferson thought that it was an instance of “activist judges”–he didn’t use that phrase, but that was roughly his sentiment. He said it made the Constitution “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” So, Obama would be in good company if he opposed judicial review.

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Two years ago (it feels like yesterday) when the Health-Care bill passed, I concluded my posting on the topic with “Alea iacta est“. I said this because, at the time, everyone agreed that this was a momentous, historic occasion, with Democrats saying it was a progressive triumph and Republicans pretty much calling it the end of America as we know it. Everyone agreed it was a big deal–indeed, some went even further than that.

But now, the word on the virtual street is that the Supreme Court is going to uncast the die and pack up and go right back across the Rubicon. At the time, people had said there would be a big court case about, but no one on the Democratic side seemed that worried about it, and no one on the Republican side seemed to think it would get struck down. The Judicial Branch: the most forgettable branch of government.

What seems especially funny to me is that it is apparently all on the shoulders of one guy: Justice Anthony Kennedy. It seems to me the Court will otherwise vote along political lines, which really takes the fun out of the whole guessing game, if you ask me.

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I’m not a lawyer. I don’t anything about Constitutional law or any of the precedents involved in the present Supreme Court case on Obama’s health care plan.

But this Mother Jones article by Adam Serwer about it seems pretty vapid to me. Why, Serwer criticizes Solicitor General Verrilli, the guy defending the law to the court, for coughing. So what? Did his arguments make sense? He complains that Verrilli gave “a rambling, apprehensive legal defense” of the law, but doesn’t offer specifics as to what that means.

Well, read the transcript and make up your own minds.

One other thing: at one point, Chief Justice Roberts said:

You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren’t purchased for their own sake, either. They are purchased for the sake of transportation or in broccoli, covering the need for food. I — I don’t understand that distinction.

Verrilli answers:

The difference, Mr. Chief Justice, is that health insurance is the means of payment for health care and broccoli is (interruption) And — and broccoli is not the means of payment for anything else.

Well, I suppose we could have a barter system, and maybe broccoli would be then. But we don’t. We have a fiat currency system. Currency, in fact, is a means of payment for things. And who is in charge of the currency? Yes, indeed; the government is. The government regulates the currency market. Does it compel everyone to have currency? No, not exactly, but see how far you get without it.

Now, even more specifically, does Congress have the power to regulate currency? Oddly enough, it does under the Constitution, but it voluntarily ceded that power to the Federal Reserve. Even more strangely, many of the libertarians I know who oppose the health care law because of the power it gives Congress also support abolishing the Federal Reserve and giving much greater power back to Congress.

As I see it, according to Libertarian logic, one or the other is unconstitutional, but not both. Of course, it could be neither. In fact, I rather think it is neither, and that both the Fed and Obamacare are quite alright. But it’s only right to offer you fellows a chance. I keep hearing you say you want to end the Fed and strike down Obamacare and it makes me curious.

But like I said, I’m no lawyer. I’m Joe Moron, the blogger. So, to you lawyers out there: explain the flaws in my thinking.