SCOTUS & ‘Embarrassing the Future?’ - By LINDA GREENHOUSE

[kpete]

‘Embarrass the Future?’
By LINDA GREENHOUSE


All as tantalizing as it is unknowable from the outside. The larger point – the relevance to the health care case – is that there are obviously tensions and even rifts within the Supreme Court that don’t map readily onto the one-dimensional 5-to-4 narrative. This is the challenge facing Chief Justice Roberts as he tries to lead the court to an outcome. While I expect the statute to survive, I also have two other predictions. One is that however the case comes out, the chief justice will be in the majority and will write the controlling opinion. I don’t say “majority opinion” because I don’t think there are five justices who will necessarily agree on a common rationale for their agreed upon result. In addition, or as an alternative to upholding the individual mandate as an exercise of Congressional authority under the Commerce Clause, some may prefer to treat the individual mandate as a tax, squarely within Congress’s taxing power. Others may invoke the “necessary and proper” clause of Article I, Section 8. Consider that a court that spent nearly six months on the strip-search case has barely three months before the end of the current term to decide the future of health care.

The chief justice’s concurring opinion in the strip-search case, only three paragraphs long, is interesting for a reason beyond what it might suggest about intramural stress. Here is the final paragraph:

“The court makes a persuasive case for the general applicability of the rule it announces. The court is nonetheless wise to leave open the possibility of exceptions, to ensure that we not ‘embarrass the future.’ ”

“Embarrass the future”? The quote, from a 1944 opinion by Justice Felix Frankfurter in a tax case, is usually offered to mean that the court shouldn’t encumber itself by declaring solutions to problems that have yet to emerge. Maybe that’s all the chief justice meant. But John Roberts is both a careful prose stylist and a man acutely conscious of his and the court’s place in history. There are so many other ways of expressing a minimalist impulse than this unconventional use of the word “embarrass” that I have to wonder whether he didn’t have in mind the prospect of institutional embarrassment, and not only in the case at hand.

Much more:http://opinionator.blogs.nytimes.com/2012/04/04/embarrass-the-future/?hp

[tularetom]

1. IOW he knows how fucked up this court is but he's too spineless to say it

Roberts is aware that there are three outright clowns among his associates and they are making the court a joke that will provide material for late night comedians for decades to come as the impact of their douchebaggery becomes apparent.

He's a douchebag too but he knows that "the Roberts court" will be a national disgrace if something isn't done. It won't be the "Scalia" or "Thomas" court.

[Allan Holmes]

2. Justice Roberts

Linda Greenhouse, an excellent commentator on the court, has confused - as many did with Justice Rehnquist (the man I believe Justice Roberts is attempting to channel) - intelligence with a willingness to abandon a political agenda. Justice Roberts is affable and bright. I believe that he is also determined to preside over a court that strongly favors corporate and institutional interests over individual liberties and human rights. In my judgment, Justice Rehnquist never let the reputation of the court get in the way of his desire to follow such a path, and I see nothing in Justice Roberts that suggest he's on a different road -- unless one credits his superficial attempts to disguise his motives: e.g., the Frankfurter quote. Incidentally, the irony of quoting Frankfurter as authority for the proposition that the court may create a civil liberties relief valve is not lost on anyone who remembers Justice Frankfurter.

There is a concept that the court is something of a technocracy which responds favorably to eloquent legal arguments based upon the analysis of precedents. With this view, we are to appreciate the high level of competency of the solicitor general's office; the technical artistry of the lawyers who specialize in Supreme Court appearances; and the keen legal intellects of the justices and, of course, those of their many law clerks. We are to understand that this process assures us a discourse that cannot but result in enlightened opinions of the greatest service to our citizenry.

I believe that the singular purpose of the court under the constitution is to safeguard individual liberties and human rights, and that the maintenance of its authority as an institution of government requires it to demonstrate fealty to this purpose. It doesn't take a whole lot of legal education to "get it" as a Supreme Court justice. I'd trade 100 John Roberts/William Rehnquists for 1 Hugo Black. It's a terrible mistake to fantasize that any level of "legal intellect" is a substitute for the basic duty of the court under the constitution. In fact, the writing of legal opinions is really nothing more than glorified pipe fitting. It's the water that matters, and justice is the water.

[elleng]

3. Posted earlier.

http://www.democraticunderground.com/101622949

And, as to the strip search case:

http://www.democraticunderground.com/101622909