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Everyone is talking about the Supreme Court’s ruling on Obamacare.  But I don’t want to talk about that now.  I want to address another controversial 5-4 ruling, one that many said was the last one before this to garner such attention.  James Fallows alluded to it in his hyperbolic-yet-interesting-but-ultimately-irrelevant pre-ruling post: the curious case of Bush v. Gore.

Since I didn’t start blogging until nine years after that decision, I’ve never really talked about it on here.  It’s quite interesting.  What does our go-to source, Wikipedia, tell us? 

The Court held that the Equal Protection Clause guarantees to individuals that their ballots cannot be devalued by “later arbitrary and disparate treatment”. Even if the recount was fair in theory, it was unfair in practice. The record, as weighed by the Florida Supreme Court, suggested that different standards were seemingly applied to the recount from ballot to ballot, precinct to precinct, and county to county, even when identical types of ballots and machines were used.

So, Florida screwed up the recount, huh?  What the heck were they doing, counting in Greek numerals?  How can you screw up a simple vote count unless corruption is involved?  Well, whatever.  Then:

The Court stated that the per curiam opinion’s applicability was “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

I have read this over and over.  I am no legal expert, but I can read English.  I am going to write, in a separate paragraph, in bold, my reading of this.  If you are a legal expert, please explain to me if I am making mistake in the following paragraph, for I can see no other interpretation.

The Court had to make sure their ruling applied only in that case, because otherwise it could conceivably call into question many other elections in the history of the United States, and future ones as well.  Certainly, every recount was now suspect.  According to their findings, known methods of vote counting may have been unconstitutional.  I mean, if they couldn’t recount votes in a constitutional manner, how could anyone be sure they had counted them right in the first place?

I am not saying the Court was wrong.  I am only saying that if they were right, there existed a possibility that the entire system was fundamentally flawed.  At least that’s how I read it.  Am I wrong?

However, this part was a 7-2 ruling.  The 5-4 ruling was the controversial one, the one that said they couldn’t try a constitutional recount.

Conservatives have been quick to point out that the Court did not decide the election for Bush because, had the recount continued in those counties, Bush would have won anyway.  they cite this New York Times story from 2001:

A close examination of the ballots found that Mr. Bush would have retained a slender margin over Mr. Gore if the Florida court’s order to recount more than 43,000 ballots had not been reversed by the United States Supreme Court.

The story went on to note:

But[…] Mr. Gore might have won if the courts had ordered a full statewide recount of all the rejected ballots.

Please observe that the story is from 2001.  Not 2000.  That means that people only found out what would have happened almost a year later.  The Court making their decision knowing that if they stopped the recount Bush would win, whereas if the recount continued, it was unknown whether he or Gore would win.  Now, we learned after the fact that Bush would have won had they allowed the count in those counties to continue, thus rendering it a moot point, but they did not know that at the time.  We must evaluate their decisions based on the knowledge they possessed when they made the ruling:

  • Stop recount: Bush chance of victory = 100%
  • Continue recount: Bush chance of victory = x, where x < 100%

I think it’s clear what the dominant strategies are in this case for any political partisan, no?

But the Supreme Court is not political!  They are just a machine that ruthlessly interprets the law, not biased in any way, shape or form, right?  They wouldn’t decide an election based on anything other than legal precedent.  That wouldn’t be logical.  What would Vulcan High Command say?

Let’s hear from Justice Scalia on the matter:

There you have it.  They had to do it!  Everyone was laughing at us!

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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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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.