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More dribs and drabs after the big health care ruling

The NYTimes put together a cool graphic showing the makeup of the Supreme Court majorities over recent years in which one of the conservatives has joined the four liberals.

There have been 30 instances of this. Not surprisingly, Justice Anthony Kennedy was the decisive 5th vote in 25 of the 30 cases. Yesterday’s ruling was the first time Chief Justice Roberts provided the single conservative vote to create such a coalition. Clarence Thomas and Antonin Scalia have each done it twice. Samuel Alito has never done it.

The fact that there are 30 such instances should chasten shallow liberal thinking that tends to see the five Republican appointees as a solid bloc. They do stray. Click through to the graphic if you want to see which cases.

My buddy Doug Tice, the Strib’s op-ed editor, made a similar argument from the opposite direction. In the big cases that ended the recent term, he found several interesting instances in which members of the conservative bloc broke ranks and voted for relatively liberal rulings. But the court’s four liberals voted as a bloc in every instance. One of the advantages I find of having smart, well-informed, fair-minded, fact-oriented conservatives as friends, is that it forces me to directly confront real facts and reasonable arguments from outside the liberal consensus.

(By the way, I don’t know many other examples of analysts who got this right, but Tice also wrote a column, in the week after the oral argument in the Obamacare case, declaring that the mandate is really a tax in disguise and predicting that this could be the basis the court might use to uphold the law. Here’s a snippet from that column:

“Whatever you call it, the thing is a tax — a tax you don’t have to pay if you have health insurance. Considered as a tax with an exemption, it’s hard to see why the mandate is any more constitutionally controversial than all the other “provisions” under which Americans get a tax break — by purchasing a fuel-efficient car, or energy-conserving windows, or (at certain times) a house, or paying tuition, or giving money to charity, or many other favored expenditures.

The tax dodge, if you will, may prove to be a loophole big enough to save Obamacare. I don’t how the court will rule (and despite all the predictions you’ve heard, neither does anybody else, except maybe the justices). But don’t be surprised if at least a few Supremes cut through the malarkey, proclaim the “provision” a tax in a dime-store disguise.”)

Of course, the opposite of having dialogue with smart, rational, factual conservatives is having Rep. Michele Bachmann displaying the symptoms of what might be called Obamacare derangement syndrome. Bachmann called yesterday’s ruling “schizophrenic” and accused the Supremes of “judicial activism.” This stands the traditional conservative definition of the term on its head.

Judicial activism used to be a court finding an excuse to strike down a law, imposing the (unelected) justices’ policy preference over that of the elected branches that are supposed to be making policy. The opposite of judicial activism — what conservatives used to call “judicial modesty,” or “restraint” — used to be looking for a reasonable constitutional basis to uphold a law, if you could find one, out of deference to the elected branches. Apparently, the definition has been rearranged.

On her congressional website, Bachmann declared after the ruling that repealing Obamacre was more urgent than ever because:

“Every American should have the opportunity to provide health care for themselves and their family and the freedom to choose the plan that’s best for them. Health care reforms should ensure families and doctors make health care decisions – not Washington bureaucrats and politicians. Millions of Americans are still without access to affordable health care. The Supreme Court’s decision didn’t change that. Americans deserve real market based reforms, not big government, to increase access to the greatest health care system in the world.”

If you deconstructed that short statement, you would find easy basis for challenging almost every syllable. But my favorite is the crescendo about the greatest health care system in the world. That always gets the crowds applauding, but is Bachmann aware that the United States, compared to all other industrialized nations, has the most expensive health care system, the lowest life expectancy, the highest infant mortality rate and, of course, by a huge margin, the largest portion of its population uninsured?

Comments (13)

  1. Submitted by Pat Berg since 2011 on 06/29/2012 - 01:54 pm.


    Whenever I hear Ms. Bachmann trumpeting her claim about “the greatest health care system in the world”, I find myself wanting to point out the degree to which her provincialism may be coloring her perceptions and which she may be entirely unaware of. Specifically, when it comes to health care, MINNESOTA is considered to be at the top of the list in the country ( and a person who has received most or all of their health care here – as is almost certainly the case for Ms. Bachmann – might not be aware of how much worse it can be in a state without our stellar record.

    I really think it’s possible that Ms. Bachmann is confusing “the U.S. has the greatest health care system in the world” with “Minnesota has the greatest health care system in the nation” and she just doesn’t see that – whether willfully or not.

    • Submitted by Paul Brandon on 06/29/2012 - 04:29 pm.

      Is she aware?

      And does she care?
      The United States DOES have the world’s greatest health care system — for those who can afford it.
      Which she could, even if we (through the Congressional health care system) weren’t paying for it.

  2. Submitted by Ross Williams on 06/29/2012 - 02:15 pm.

    Republicans, not Conservatives

    “The fact that there are 30 such instances should chasten shallow liberal thinking that tends to see the five Republican appointees as a solid bloc. They do stray”

    Kennedy strays occasionally. The other four justices have done so a total of 5 times. What is clear is that the five Republicans vote Republican, but not every case is politically partisan.

    What is unusual here is that his case was partisan. Roberts voted Republican on the central issue of the commerce clause, but he protected the court from charges of partisanship by finding other reasons to uphold the law. Essentially his role as Chief Justice trumped his partisan tendencies. It may be that will become a trend. Roberts may increasingly identify with the Court’s interests as an institution and his place in history as its leader, rather than with his political history.

    If this law had been passed under President Romney, based on his Massachusetts health care law, there would not have been a single Republican vote against it.

  3. Submitted by Ross Williams on 06/29/2012 - 02:48 pm.

    Phoney Conservative Issues

    As for Tice, lets take a look at his examples:

    ” The court struck down the Stolen Valor Act that outlawed false claims of military heroism — with two conservatives on board.”

    You wonder how the Stolen Valor Act became a Republican issue. The law was introduced by Democratic Senator Kent Conrad in the Senate and Democrat Jon Salazar in the House. It passed the Senate unanimously.

    If you look at the overall court docket you will find numerous examples where all four “liberal” justices voted for “conservative” results. That usually resulted in a unanimous decision since, as you and Tice both support with your examples, the conservative justices almost never join in “liberal” decisions..

  4. Submitted by Joe Weiner on 06/29/2012 - 02:53 pm.

    Liberal Block

    I think Mr. Tice missed the boat a bit with his “liberal block” comment. Breyer and Kagan joined with the “conservative block” in the coersion theory of the medicaid expansion portion of the opinion. In the confrontation clause case, Williams v. Illinois, decided on June 18, the majority consisted of Alito, Kennedy, Roberts, Breyer and Thomas with Kagan, Scalia, Ginsberg, and Sotomayor in the minority. The sentencing guidelines case, Southern Union Co. v. U.S. was decided by Sotomayor with Roberts, Scalia, Thomas, and Ginsburg and Kagan. It’s easy for casual observers of the Court to make sweeping generalizations based on a limited number of cases, but it’s not accurate here.

  5. Submitted by Ross Williams on 06/29/2012 - 05:33 pm.

    Tice was Dissembling

    Here is what Tice actually said:

    “But here’s the curious thing. In none — not one — of these big final-week cases did a single “liberal” justice on the high court (Democratic appointees, all four) stray from the predictable liberal position.”

    In fact, as Jon Weiner points out, they strayed from that position on the very case Tice is commenting on when they voted on the medicaid expansion portion of the law. Tice had a point to make and chose facts to support it and deliberately ignored those that contradicted his claim.

    Isn’t it Eric Black’s job to call his “conservative friends” on this kind of stuff, rather than echoing it? Apparently not.

  6. Submitted by DOUG TICE on 06/29/2012 - 06:34 pm.

    D.J. Tice responds

    Several commentarians here make a valid point, noting that liberal justices strayed from the ideological fold by voting to limit the federal government’s power to penalize states that balk over the Medicaid expansion. I’ve also been reminded that liberal justices had strayed by agreeing to uphold, for now, the “papers please” provision of the Arizona immigration law. I should have noted those breaks in their predictability.

    I think it remains true that on the fundamental holdings in both these cases — upholding most of the ACA and striking down most of the Arizona law — the liberal bloc stayed together better than the conservative bloc did. But I’m happy to acknowledge that justices in both blocs are less ideologically rigid than is often alleged. As I said in my column: “I don’t happen to agree that either the liberal or conservative justices’ reputations for good-faith effort at impartiality and principled legal reasoning deserve to be seen as ‘shattered.’”

    • Submitted by Bill Gleason on 06/30/2012 - 07:28 am.

      Thomas, Scalia?

      Good-faith efforts at impartiality?

      I don’t think so.

      Justice Thomas knows how he is going to vote. He doesn’t even need to ask any questions.

      Scalia’s recent rant was an embarrassment to the court

      Perhaps Mr. Black is starting to be intimidated, or tired, of the Swifts of the world?

      Give Mr. Tice credit, though. At least he was willing to acknowledge that liberal justices stray from the ideological fold on occasion. Certainly more than Thomas or Scalia.

      • Submitted by Thomas Swift on 07/02/2012 - 03:22 pm.

        Or perhaps

        Mr. Black is starting to tire of the avoiding the reasoned logic the “Swifts of the world” argue in favor of.

  7. Submitted by Dan Hintz on 06/29/2012 - 09:04 pm.


    “One of the advantages I find of having smart, well-informed, fair-minded, fact-oriented conservatives as friends, is that it forces me to directly confront real facts and reasonable arguments from outside the liberal consensus.”

    Seriously, Eric? If you were really forced to confront real facts, you would have looked beyond Tice’s cherry-picking of cases and seen that there are plenty of instances where members of the “liberal bloc” voted with the conservatives. What you did instead was simply take your buddy at his word and got taken in by his dishonest argument. Tice is well-informed and may come across to the careless observer (or lazy journalist) as fact-oriented, but his piece was every bit as dishonest as what Michelle Bachmann had to say on this issue.

  8. Submitted by Paul Udstrand on 06/30/2012 - 11:38 am.

    Small quible

    We do not have the best health care system in the world, not for those who could afford it or anyone else. There isn’t a single health care measure (other than cost) or procedure on which the US leads all other nations. Those who can “afford” it are paying a lot for a lot of unnecessary procedures, medications, and standard care. I’m not saying we don’t have some fantastic doctors and teams in this country, and we’ve got some good hospitals, but we have fantastic doctors and teams and hospitals all over the world. The only health care measure the US leads the world on is cost. I know a lot of people come from all the world to go to Mayo, but one hospital doesn’t make a nation number one.

  9. Submitted by Connie Sullivan on 06/30/2012 - 12:28 pm.

    Both Black and Tice have been caught doing “journalism” by talking off the top of their heads. We need more MinnPost articles that are less opinionated, more factual. Please.

  10. Submitted by Jon Kingstad on 07/02/2012 - 04:37 pm.

    The ACA individual mandate is NOT a tax. . .

    At least Romney and Obama agree on that.

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