Roberts’ Change of Mind Confirmed

Jan Crawford, who is very well connected in conservative legal circles, reports that two sources have confirmed to her that Chief Justice John Roberts did indeed change his position in the health care mandate case — and then withstood furious lobbying to get him to change it back.

Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.

This is very interesting. As Crawford notes, it is very rare for any such leaks to come out of the court. Orin Kerr thinks it’s very likely that the leak came either from one of the justices or clerks:

So who leaked? We don’t know for sure, of course. But Crawford’s story has the kinds of details that only the Justices and their clerks would likely know. The leaks go into what the Justices were thinking and what signal they meant to send with their actions. (Example 1: “There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as ‘arm-twisting.’” Example 2: “The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.”) That sure seems sounds like the kind of stuff only Justices and their clerks would be privy to. Further, I doubt Crawford would run with a story with that kind of detail that was sourced less directly. So my best guess would be that the two sources she relies on are from the among the Justices and their clerks…

Nothing quite like this has happened before, at least as far as I know, so it’s hard to guess. But hey, this is a blog, so let’s speculate anyway. If clerks did this, it was just crazy: A clerk who leaked this and is identified has likely made a career-ending move. It’s true that a group of OT2000 clerks leaked the details of the deliberations in Bush v. Gore, and as far as I know they did not face consequences. But that was in the fall of 2004, almost four years after the decision, and my sense is that at least some of the leaking clerks were already comfy in academic jobs and no longer practicing. In contrast, the health care cases just came down three days ago. If the Court still works as it did ten years ago, all of the clerks are still working at the Court: The clerks don’t start to rotate out for at least another week. Even assuming a clerk or two was so extraordinarily dismissive of the confidentiality rules to leak this, it would be nuts to leak over the weekend when you have to show up at the Court for work tomorrow.

I’m with him on this. It seems unlikely to me that a clerk would do this at this point in time. I could see it happening a few months from now, after the clerks have moved on to real jobs somewhere, but so soon after the decision? That seems like it would take extraordinary chutzpah. But the same is true of one of the justices, especially a fellow conservative justice. It really is an incredible situation, one I can’t ever remember hearing about before.

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  • Dennis N

    The conservatives refused to join any aspect of his opinion, including sections with which they agreed

    How mature.

  • jws1

    This story is yet another example of what kind of people conservatives have tend to be: temper-tantrum throwing spoiled whiny brats. This goes for the conservative justices on the court as well for the leaker(s), whose motivation seems transparent enough – to make Roberts look bad. I could see a young conservative clerk being that stupid and arrogant.

  • http://www.atheist-faq.com Jasper of Maine

    Hypothetically, there shouldn’t be any politics in the supreme court. I always figured they all minded their own business and just voted when it came time.

  • eric

    Often in government, something is leaked precisely because the people involved wanted it leaked. I will buck Crawford’s analysis a bit and guess that it WAS a clerk that leaked this…on the orders of one or more of the judges.

  • busterggi

    So much for the apolitical SCOTUS – just as bought & paid for as any political organization.

  • Reginald Selkirk

    I suppose Clarence Thomas’ reputation for never saying anything leaves him off the list of most likely suspects…

  • Hercules Grytpype-Thynne

    Our government is run mostly by children.

  • Michael Heath

    busterggi writes:

    So much for the apolitical SCOTUS – just as bought & paid for as any political organization.

    This make no sense; so please provide cites. Are you claiming the majority was paid-off by health insurance providers? Are you claiming the dissenters were paid-off, even indirectly, and if so, by whom? Even as supposedly obvious hyperbole this assertion fails.

  • d cwilson

    Hypothetically, there shouldn’t be any politics in the supreme court. I always figured they all minded their own business and just voted when it came time.

    That would make collaborating on joint opinions rather difficult.

    It’s a little naive to think the justices sequester themselves in monastic cells and only emerge when it’s time to vote. I would expect that would use each other as sounding boards as they hash out their opinions.

    There is probably, however, less back and forth talk in this court as opposed to early ones. The Warren court was known for the justices struggling to avoid these 5-4 decisions that are now commonplace in the Roberts court. They would often get together and try to reach a consensus, which is one of the reasons that court had far fewer close opinions.

    That kind of consensus building is difficult when you have justices like Scalia and Thomas, who openly disdain differing opinions and whose views are set in granite before the hearing even begins.

  • busterggi

    Gee Michael, Thomas’s wife works for anti Obama health care groups, Scalia does speaking engagements against Obama’s health care – their family income comes from their opposition. Are you claiming you don’t know that? Because I’ve read too many of your posts to think you’re ignorant of this.

  • baal

    @#6 I’m sure you were being ironic. I googled “Justice thomas koch event” and there’s no shortage of stories covering how the honourable Justice likes talking – preferably in a luxury vacation location and with his buddies, the Kochs.

  • Randomfactor

    I’ve said before that I think Roberts looked into the abyss his fellow gang of five members had planned for the country, took a tiny step to the left, and said to Scalia “after you…”

  • hotshoe

    The leaks go into what the Justices were thinking and what signal they meant to send with their actions. (Example 1: “There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as ‘arm-twisting.’” Example 2: “The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.”) That sure seems sounds like the kind of stuff only Justices and their clerks would be privy to

    Nope. It sounds like the kind of stuff someone would invent when they’re trying to make themselves into a “confidential source”.

    “… described it as “arm-twisting” ? Sure, why not, if you’re recounting disputes you imagine but didn’t actually witness, why not pretend to quote one justice who described it as arm-twisting.

    “… a signal the conservatives no longer wished to engage in debate with him.” Yeah, that’s the kind of “signal” you would invent if you wanted to appear knowledgeable about strategic discussions which you were never actually part of.

    Alternatively, these are the things which actually did happen behind the scenes and which were accurately reported by a genuine witness. But there’s simply no way to tell from the supposedly-true report. Ah, well, skepticism …

    I do believe the report is a true leak because of the risk to Jan Crawford’s career if she let herself be taken in by a fake leak. Since I’m sure she’s smart, smart enough to know who she was talking to, it follows that she knows she has no risk, because she knows she is getting a true leak. She’s just not dumb enough to risk it for anything less than certainty of both the overall gist and the specific details.

    It’s interesting that Kerr goes on to suggest this is a harbinger of difficulties in the Justices’ working relationships for the future. I can hardly wait to see how that plays out. Maybe it will frustrate Scalia so much that he’ll resign early. Hope, hope.

  • http://uncyclopedia.wikia.com/wiki/User:Modusoperandi Modusoperandi

    “Orin Kerr thinks it’s very likely that the leak came either from one of the justices or clerks…”

    Which name gets mentioned a whole bunch of times? That.

  • http://www.pandasthumb.org Area Man

    I really don’t see why anyone cares if Roberts changed his mind. It’s his mind and he can change it. His final vote is the only thing that matters.

    I suspect that, aside from attempts at damaging him personally, the point of leaking this is to make the decision look razor close and therefore to weaken the moral force behind the majority. Which reminds me of that Simpsons episode when they were having a spat with their rivals in Shelbyville. One of the Shelbyville residents brags about beating Springfield in football “nearly half the time”.

  • Michael Heath

    Re monied pressure on the Supremes:

    A couple of years ago, prior to the Citizens United ruling but after Justices Roberts and Alito had established their voting patterns, the New York Times ran a lengthy magazine article about how beneficial the Roberts’ Court had been to members of the U.S. Chamber of Commerce. [Which is a very different acting entity than most of our local chambers.]

    One reason I didn’t make any predictions about the outcome of the Obamacare ruling was this conservative conundrum. Should the conservatives take the side of their tribe’s populists and partisans, or take the side of the effected plutocrats? The fact the dissent came out so strong with Tea Party populism was surprising, but even more surprising to me is that even to this day I continue to underestimate the lunacy and infantilism and yes, nihilism, of the conservative movement.

    This ruling has us observing all but one conservative justice behaving at Sarah Palin’s level of emotional maturity. We learned with the advent of Ms. Palin and the Tea Party was that conservatives were increasingly embracing leaders who didn’t merely pander to their delusional idiots, were no smarter or saner than the worst of their ilk. Now we observe those we thought knew better transforming themselves into delusional idiots. This transformation is a new phenomena because it goes beyond obvious pandering and comes from some really ugly ids. Fox News, AM Radio, and conservative emails are impacting even their very best in a way I never imagined. I guess it’s so much easier falling into this mire than working on being right and standing on principle.

    CJ Roberts even provided them with a path to support long-term conservative and plutocratic ends by greatly narrowing commerce clause powers while using the taxing authority to benefit the health insurance industry. Instead all the conservatives but Roberts were intent on destroying the uppity black in the White House, so intent they seemed to fail to even perceive how to do a long-term win/win for their side. Instead we get an infantile rant.

  • wscott

    even more surprising to me is that even to this day I continue to underestimate the lunacy and infantilism and yes, nihilism, of the conservative movement.

    Right there with you, man. OTOH, if the more conservative Justices really want to drive Roberts away, I don’t think the liberal side of teh bench is going to complain.

  • jeremydiamond

    What does “OT2000” mean?

  • Pinky

    The phrase “Please provide cites” I see occasionally in these comments, especially in response to a perfectly valid opinion seems more a chilling effect than an enthusiasm for the truth.

  • http://motherwell.livejournal.com/ Raging Bee

    But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”

    So the conservative judges won’t let Roberts join in any of their reindeer games anymore? That’s typical right-wing babyishness, but it might be a good thing, if Roberts starts to drift toward the other side as a result. I certainly don’t remember any liberals on the Court acting like this.

    As for who leaked all this, is it possible one of the liberal justices had it leaked to show how infantile their adversaries are? Unprofessional, to be sure, but a reasonable response to unprofessional behavior.

    OH, and are you actually trying to imply that clerking at SCOTUS is not a “real job?”

  • slc1

    As I speculated on the Stolen Valor post, is it possible that Roberts has decided to distance himself somewhat from Scalia and company?

  • Vall

    And cue Michael Heath demanding citations for your opinion. I can’t take anything he writes seriously ever since the Homeowners Association debacle where he sided with the HoA for seizing a deployed soldier’s HOUSE over a $200 missed payment.

    I don’t think of these posts and comments as a peer reviewed journal, I think of it as a conversation. I may be wrong, and I’m willing to have my opinion changed, something that lacks in his posts.

  • http://uncyclopedia.wikia.com/wiki/User:Modusoperandi Modusoperandi

    Raging Bee “I certainly don’t remember any liberals on the Court acting like this.”

    Oh, please! Ruth Bader Ginsburg is well known for flipping the bird as her dissent. Sometimes, she moons.

    “As for who leaked all this, is it possible one of the liberal justices had it leaked to show how infantile their adversaries are? Unprofessional, to be sure, but a reasonable response to unprofessional behavior.”

    They tend to use snark.

  • DonDueed

    OT2000: October Term 2000. Identifies a particular Supreme Court session, in this case the one that began in October 2000.

  • jaranath

    I share Area Man’s confusion at #15. Why do we care so much whether Roberts changed his mind? I’ve seen a number of stories along these lines. So what? Is it just media obsession over how they missed the prediction, or does it really say something Very Important, and if so, what?

  • Scott Hanley

    even to this day I continue to underestimate the lunacy and infantilism and yes, nihilism, of the conservative movement.

    I don’t know about infantile. Adolescent seems to describe them well enough.

  • David C Brayton

    @16 Michael Heath. Nice comment.

  • http://spaninquis.wordpress.com/ Spanish Inquisitor

    I think Roberts was the leak.

    “Give ME, the Chief Justice, a hard time when I make a decision? I’ll show you. Let the world know what a bunch of back-stabbing, petty juveniles the conservative wing is comprised of.”

    It also sends the message that he’s sympathetic to the anti-ObamaCare crowd, he just has higher priorities.

  • http://drx.typepad.com Dr X

    Maybe Virginia Lamp Thomas spilled the beans in a 3:00am drunk-dial to Crawford.

  • grumpyoldfart

    A few more brats like that on the bench and your courts will go the way of your politics – down the plughole and lost forever.

  • Azkyroth, Former Growing Toaster Oven

    Robert’s acquisition of mind tentatively confirmed

    FIFY.

  • Azkyroth, Former Growing Toaster Oven

    Nope. It sounds like the kind of stuff someone would invent when they’re trying to make themselves into a “confidential source”.

    “… described it as “arm-twisting” ? Sure, why not, if you’re recounting disputes you imagine but didn’t actually witness, why not pretend to quote one justice who described it as arm-twisting.

    “… a signal the conservatives no longer wished to engage in debate with him.” Yeah, that’s the kind of “signal” you would invent if you wanted to appear knowledgeable about strategic discussions which you were never actually part of.

    Alternatively, these are the things which actually did happen behind the scenes and which were accurately reported by a genuine witness. But there’s simply no way to tell from the supposedly-true report. Ah, well, skepticism …

    ….do you do this with every piece of information? O.o

  • Azkyroth, Former Growing Toaster Oven

    The phrase “Please provide cites” I see occasionally in these comments, especially in response to a perfectly valid opinion seems more a chilling effect than an enthusiasm for the truth.

    It depends.

  • Azkyroth, Former Growing Toaster Oven

    And cue Michael Heath demanding citations for your opinion. I can’t take anything he writes seriously ever since the Homeowners Association debacle where he sided with the HoA for seizing a deployed soldier’s HOUSE over a $200 missed payment.

    …….are you fucking serious?

  • Vall

    I don’t intend to sound mean, Michael Heath is spot on in almost every post. It seems sometimes he is so inflexibly right that it isn’t a discussion.

    If the comment was “4 of the justices took $80,000 over the course of six months” then I could see asking for citations. But in a general comment, it seems a little heavy handed.

  • JasonTD

    Michael Heath wrote:

    CJ Roberts even provided them with a path to support long-term conservative and plutocratic ends by greatly narrowing commerce clause powers while using the taxing authority to benefit the health insurance industry.

    The FSM forbid that any of the Justices apply the law in an unbiased way rather than by trying to serve ideological or corporate masters. For all the wrangling over Roberts’ motivation or thinking, virtually no one is arguing that he acted on the basis of sound legal scholarship. Perhaps someone here has been following commentary about that aspect of the decision and can point me to it?

  • Michael Heath

    JasonTD writes:

    virtually no one is arguing that [CJ Roberts] acted on the basis of sound legal scholarship.

    CJ Roberts and the conservative justices en masse, with the arguable exception of Justice Kennedy, deserve our assumption their motives are always derived from some combination of biases having little to do with good jurisprudence.

    I haven’t had the time to search out reasoned critiques of Roberts or the other plurality arguments. I did read the key parts of Roberts’ opinion and tentatively formed one of my own, but as a mere laymen I prefer making conclusions only after a continuum of experts weigh-in so I can consider their perspectives.

    I’ve long found the conservative argument desiring to prohibit or severely limit current federal commerce clause powers weak, arguable perhaps but incredibly weak. The fact the conservatives decided this was the case to go full monty is absurd, where absurd is too weak a word. Justice Ginsburg revealed the hypocrisy of their commerce clause dissent in her opinion when comparing their dissent to their position in Raich.

    In this same opinion I also found CJ Roberts’ argument defending Obamacare on the federal government’s taxing power gut-cringingly bad. He primarily used one weak premise, defer to Congress when you don’t understand something, where there are several other supportive and attacking premises he avoids.

    Here’s a guy (Roberts) who won an incredible number of appellate court cases by taking his opponents arguments head-on, and winning. In his Obamacare opinion he makes a weak argument on the constitutionality of Obamacare depending on its weakest pillar (power to tax), and mostly avoids good contra arguments. This leads me to think his switch was in relative haste, where I hope he was motivated to switch by being aghast at how the conservatives were looking to metaphorically kill the uppity black ursuper in chief with their all-out assault on the entire healthcare bill, as if the other four conservatives became possessed by demon spawn of Rush Limbaugh and Sarah Palin. I was shellshocked for a while having read of their behavior.

  • Michael Heath

    Vall writes:

    I can’t take anything he writes seriously ever since the Homeowners Association debacle where he sided with the HoA for seizing a deployed soldier’s HOUSE over a $200 missed payment.

    That’s a misrepresentation of my argument on that matter. My primary objection was people making harsh judgmental conclusions without having the needed facts to make a defensible conclusion. Where this lack of evidence didn’t stop many people from lambasting the HOA in a manner no better than how creationists go after scientists, i.e., out of ignorance where they’re perceived as powers outside one’s own tribe and therefore deserving of our ire – the hell with the full set of facts needed to assert a compelling position.

    After Ed posted on this matter we also learned this couple’s delinquency on paying their Dues began months prior to the husband being transferred, that the cause wasn’t merely the wife’s illness but instead directly related to the husband not paying his bills and also failing to insure his past and current monies owed get paid after he deployed. So I’d be surprised if the full amount came out to $200 while realizing it was a relatively trivial amount relative to the value of the home. But we should also realize a co-owner’s liability in a HOA exceeds his house value if other co-owners become delinquent as well – ya know, that math thingy distances us from the Palin style of ‘common sense’ we see deployed by Vall and instead into deeper issues regarding the viability of the HOA and market valuations of all units within the HOA – which are considerations good HOA Boards should be deeply concerned about.

    And during much of the debate, and possibly through the end – I don’t recall, we didn’t even know if the HOA was even aware of the unique circumstances which had people in this forum arguing this couple should have been treated differently than other delinquent co-owners. In fact we couldn’t discern if a property manager was subcontracted by the HOA and they knew of these unique circumstances.

    As someone who is deeply involved in HOA’s, one of the most important features of a well-run HOA is to treat people equally, consistent with the principle of the equal protection clause of the 14th Amendment and a basion of good liberalism. That doesn’t mean well-run HOA’s shouldn’t make exceptions, but on this matter people were lambasting them for actions taken without our even knowing if the HOA was aware an exception should be even considered.

    And finally, I do not recall my taking the side of the HOA, I do recall cringing at how liberals can make arguments every bit as bad as YECs. I’d like to think liberals are better than that.

  • Vall

    Michael Heath

    Common sense would dictate scaling the seizure of property to the value of the debt owed. I’m not suggesting they were wrong on paper, but it is excessive to take something worth at least 1,000 times the debt. What is that? “Operating costs?”

    I know you are the go-to guy for business matters, and I enjoy most of your well thought out posts, however much I disagree with some of them. I think this is your blind spot, but really who cares? I’m just some asshole with a computer.

    My original point was regarding the demand for citations. Don’t just ram it in there, ease in to it, like a gentleman.

    I would enjoy your responses more with a little less ad-hominem, but hey, I’ve got a sense of humor.

  • Uncle Glenny

    I just read the first 20 pages of Ginsburg’s decision (I think it’s close to 60); it’s like a sensible breath of fresh air. She gets a few snarks in directed at CJ Roberts, yet manages to make her case without making Congress sound like the bunch of reactionary screaming toddlers I perceive so many of them to be (you may assume I draw that mainly along party lines).

  • Azkyroth, Former Growing Toaster Oven

    Common sense would dictate scaling the seizure of property to the value of the debt owed. I’m not suggesting they were wrong on paper, but it is excessive to take something worth at least 1,000 times the debt. What is that? “Operating costs?”

    I remain to be convinced that Homeowners’ Associations serve any useful function other than being rent-seeking kickback programs for petty busybodies. This is strengthened by their apparent failure, in this case, to even bother sending someone to talk to the homeowners in person. Is my memory correct that this wasn’t done?

  • Michael Heath

    Vall writes:

    Common sense would dictate scaling the seizure of property to the value of the debt owed. I’m not suggesting they were wrong on paper, but it is excessive to take something worth at least 1,000 times the debt. What is that?

    That’s not the way people who are owed money on real estate are best able to collect. It’s a standard business practice to record a lien against the property if property owners fail to keep up with what they owe against their property. The lien makes it impossible to sell the house with a deed that comes with a covenant or warranty deed through title insurance paid for by the seller with the buyer as beneficiary. Lienholders, those who file a lien because they can’t collect what’s owed them otherwise, assumes the people who owe money will never pay – where those delinquent rarely do. Instead lien-holders anticipate collecting when the property is foreclosed and then resold, the lien-holder will finally collect at that sale.

    What was odd about this case was that Associations are almost never in first place amongst lien-holders. People who don’t pay their Dues typically have a mortgage which they’re in default on, along with owing property taxes as well. So Associations don’t become the forecloser, but instead sit on the sidelines as the lender or the county entity forecloses and then markets the property for sale, a sale where the past-due Dues are finally paid. Odd but where we didn’t have the additional facts reported in order for us to even understand whether the HOA was even handling this event or if their property manager was following the normal routine, the reporter was ignorant and biased and therefore failed to provide the needed facts to determine much of anything beyond how irrational it is for property owners to fail to pay their Dues on time.

    So your Palin-like “common sense” argument fails again when we consider how things work in the actual world; I amazed you’d depend on it as your sole argument immediately after I pointed out in advance how her type of thinking fails miserably in this case. Again, that’s given that people in default on Dues for a period of time almost never repay. So HOA’s act accordingly and file liens on the property in hopes the next warranty/covenant deed sale is where they collect what’s owed them. As they must act in order to defend the property values of all their other co-owners whose property values are at great risk if is some co-owners aren’t paying their Dues – which again, means they’re almost always in the process of being foreclosed upon.

    I’ve seen Associations whose units went from being worth $300K and $185K for 3 and 2 bedroom floorplans sink to $90K and $40K due to not just the market going down, but a handful of foreclosures because people stopped paying what was owed on their real estate. HOA Boards have a fiduciary obligation to their co-owners to do what they must to defend against such steep drops. We don’t know what was prudent in the case Ed reported on simply because anyone making an argument was doing so from ignorance given the lack of needed facts weren’t reported. The fact these arguments were conflated with ignorance of the advocates regarding the reality of running an HOA made such arguments even more gut-cringingly bad.

  • Michael Heath

    Vall writes:

    I would enjoy your responses more with a little less ad-hominem, but hey, I’ve got a sense of humor.

    I don’t think you know what ad-hominem means, if you did you’d never claim I did it. It means an attack on the person in lieu of attacking their position. People who rely on ad hominems are avoiding debate on the issues but instead hope to win the day solely by attacking the person.

    Vall earlier:

    And cue Michael Heath demanding citations for your opinion.

    I think you’d be hard-pressed finding me ever doing that. Opinions are conclusions made based on a set of assumptions supported by a certain set of premises. I enjoy considering differing opinions based on a compelling argument. I instead challenge arguments based on what I perceive to be false or a purposefully narrow set of premises.

    A defective set of premises is normally employed when the opinion/conclusion is the pre-determined objective and can’t be reached by building a compelling and honest argument. And yeah, I’m offended when another commenter hopes to get their argument considered by making a fatally defective argument by using a flawed/dishonest set of premises, that’s insulting to me and should be to all the other readers in this forum who authentically care about objective truth.

  • http://www.jafafahots.com Jafafa Hots

    HOAs do serve a purpose.

    They enforce conformity. For example, of the several HOAs I’ve had experience with in FL, they all do things like tell you which of the two shades of tan you’re allowed to paint your house, that you can’t put a palm tree in your yard, that you can’t screen in your front porch, and that you will be fined if you have brown spots in your lawn, and that you have to use one species of grass from TX that doesn’t like to live in FL and invariably gets brown spots.

    Nevermind of course that you might not want to have a grass lawn at all, considering their negative environmental impact.

    Also, no leaving inflatable beach toys or bikes inside your porch railing where people can see them, no GOLDFISH (seriously, one explicitly ruled out even having a single goldfish in their “no pets” policy).

    HOAs are designed to make neighborhoods look like medical office complexes or shopping malls all to calm the nerves of those frightened by variety.

    Slight change of topic: I was sued by an HOA for not paying a $50 assessment. Add $6000 in lawyers fees. I didn’t pay (I’m disabled and had to leave state, long story)

    A lien was placed on my home for $6000. Well, fine. I can see that.

    Then they sold my home at auction for $1200. Yes, twelve hundred bucks.

    Imagine their surprise when a later judge struck that down because the bank still held the title.

    It was entertaining. Just an anecdote, FWIW.

  • Michael Heath

    Jafafa Hots writes:

    Then [HOA] sold my home at auction for $1200. Yes, twelve hundred bucks.

    Imagine their surprise when a later judge struck that down because the bank still held the title.

    This has my head spinning; there’s a whole bunch of fail in your first sentence.

    A bank would hold title only if they foreclosed and then purchased the property at the sheriff’s auction. So how did the HOA come to think it instead owned the property? In addition, the extremely low price suggests the buyer didn’t demand a warranty or covenant deed if a judge struck down their purchase. Not demanding assurances of good title is idiotic on the buyers’ part since they had no guarantees the HOA even owned the property they were buying. If the buyers had demanded such, a title examination – which is part of the process of developing these types of deeds, would have revealed the lender held title.

  • Michael Heath

    I should clarify that I’m not claiming Hots is failing, but instead the HOA and their buyer.

  • http://www.jafafahots.com Jafafa Hots

    Michael, I can’t answer your questions for the most part because I don’t understand it either.

    It left me totally bewildered and nobody I talked to could understand it either, but I simply didn’t worry about it because it was inevitable I would lose the place anyway and because of my illness will never be owning a home or having assets to seize or an income to garnish. Eventually after the “sale” I stopped even opening their certified letters and just filed them.

    The place was not foreclosed, and still isn’t (though it will be eventually, obviously) but there was a sheriff’s auction.

    I truly have no clue. Which is why I found it kind of entertaining.

    Legal aid in CA (where I am now, crashing in someone else’s home) couldn’t help me because the property is in FL, and FL legal aid couldn’t help me because I’m in CA.

    Oddness. But a mere blip in what has been a strange life.

  • http://www.jafafahots.com Jafafa Hots

    And yeah, I have felt that the HOA was making a bad assumption.

    I became friendly with my neighbor who was related to all the key people and goings on, and through him I learned that it was a big source of pride for the directors (one of them his dad) that they had instituted rules on the HOA policy that they had successfully defended all the way to the US Supreme Court.

    Something about limiting the amount on months per year a home could be rented out by its owner.

    Knowing his dad and some of the others, I can totally see them as charging in like a bull to show the scofflaw what’s what, etc.

  • http://www.jafafahots.com Jafafa Hots

    Oh, lol which reminds me – the HOA board was made up of retired Chicago cops who had convinced all their retiring buddies to come down to the same place. So most of the neighborhood was retired Chicago cops.

    There was an atmosphere there – also why it was oddly entertaining.

    I’ll stop spamming now. :)

  • Vall

    Michael Heath,

    “I think you’d be hard-pressed finding me ever doing that.”

    Ummmm…. scroll up to #8 there big guy. I’ll quote here for you “This make no sense; so please provide cites.”

    That wasn’t very hard. I didn’t even leave this page.

    As far as HOAs go, just because it’s standard business practice does not mean it’s right. I understand placing a lien on property to cover debt, auto repair shops can do it too if you take your car in for repairs and don’t come back for it. My question is why not repo the couch, or t.v., or anything other than the roof over someone’s head. It’s that predatory “standard business practice” that bothers me. If that means I’m liberal, then so be it. I like Michael Palin so the other jabs left me confused.

    If I were to concede that legal = right, we would be in agreement. I can’t do that. You have a bias here, and I have a bias against it. I can still enjoy your comments on other subjects. You will find your gold-pressed latinum someday.

  • JasonTD

    Re: Michael Heath @37,

    CJ Roberts and the conservative justices en masse, with the arguable exception of Justice Kennedy, deserve our assumption their motives are always derived from some combination of biases having little to do with good jurisprudence.

    That’s certainly a reasonable opinion to hold, but I still reserve judgement on that. I’d like to give Justices the benefit of the doubt that they actually have an idea of how the law works and how to put things together in a somewhat consistent way, even if they don’t seem to deserve it at times.

    I do find it disheartening that you basically dismiss 4 of the sitting Justices as irretrievably biased, but say nothing of the Justices on the other side of the fence. I find it hard to believe that so many 5-4 decisions on highly politicized issues come about only because of biases on the right. Maybe the left side of the Court is just better at hiding their political biases.

    The real kicker is this:

    This leads me to think his switch was in relative haste, where I hope he was motivated to switch by being aghast at how the conservatives were looking to metaphorically kill the uppity black ursuper in chief with their all-out assault on the entire healthcare bill, as if the other four conservatives became possessed by demon spawn of Rush Limbaugh and Sarah Palin.

    Really? You lump Kennedy in with Scalia and Thomas (despite allowing for the possibility that Kennedy is more reasonable earlier in your post), accuse all four of being racist (making Thomas a term we all are familiar with, I suppose), and, of course, dismiss any reasoned argument against the Constitutionality of the ACA all in one fell swoop.

    My real point in posting originally is that I want to find more of the kind of thinking and reasoning you did in the rest of your post and less of what I saw what in what I just quoted. And I don’t mean to call just you out, but many here and elsewhere. Ed’s posts on the decision have been almost entirely on speculation about how the decision came about and little to nothing about whether it was a good decision that will be good for U.S. law in the long run. That is what interests me.

  • Michael Heath

    Vall @ 22:

    And cue Michael Heath demanding citations for your opinion.

    Vall dishonestly quotemines my response @ 43 which effectively creates a strawman of what I wrote where he quotes me writing:

    I think you’d be hard-pressed finding me ever doing that.

    Valls than moves in the for the kill:

    Ummmm…. scroll up to #8 there big guy. I’ll quote here for you “This make no sense; so please provide cites.”

    That wasn’t very hard. I didn’t even leave this page.

    Beyond Vall’s strawman of what I wrote, he’s what I wrote in full context:

    I think you’d be hard-pressed finding me ever doing that. Opinions are conclusions made based on a set of assumptions supported by a certain set of premises. I enjoy considering differing opinions based on a compelling argument. I instead challenge arguments based on what I perceive to be false or a purposefully narrow set of premises.

    So lets see, did I demand a cite @ 8 for an opinion or for a provocative premise? busterggi writes @ 5 which I challenged @ 8:

    So much for the apolitical SCOTUS – just as bought & paid for as any political organization.

    We find Vall lies once again regarding what I previously wrote given I challenged busterggi’s premise, not busterggi’s opinion/conclusion (that SCOUS isn’t apolitical) but instead that busterggi’s premise that SCOTUS is “bought and paid for”. Me @ 8:

    This make [sic] no sense; so please provide cites. Are you claiming the majority was paid-off by health insurance providers? Are you claiming the dissenters were paid-off, even indirectly, and if so, by whom? Even as supposedly obvious hyperbole this assertion fails.

    I see two conclusions to make Vall. Either you’re ignorant of the basic structure of an argument and can’t distinguish the difference between an opinion and the assertions used as a premise to support that opinion or, just like you misrepresented my past commentary on the HOA’s – you’re a liar with no compunction to mispresent what others right. I tend to think the former since most of us haven’t been formally trained to think critically and the understand the elementary components of a simple argument; so which is it?

  • Michael Heath

    I wrote:

    CJ Roberts and the conservative justices en masse, with the arguable exception of Justice Kennedy, deserve our assumption their motives are always derived from some combination of biases having little to do with good jurisprudence.

    JasonTD responds:

    That’s certainly a reasonable opinion to hold, but I still reserve judgement on that. I’d like to give Justices the benefit of the doubt that they actually have an idea of how the law works and how to put things together in a somewhat consistent way, even if they don’t seem to deserve it at times.

    I’m not presenting an opinion, I’m asserting a fact; so either I’m factually right or I’m factually wrong given it’s assertion which can be empirically answered. Not easily, but there are studies which seek to define the consistency of justices and then compare their inconsistencies to contemporaneous political objectives promoted by conservatives and liberals in such of a correlative relationship.

    I observe that the four most conservative justices predominately support conservative political goals, even if it requires them to abandon their favored interpretative approach as all but four did in Raich, and even if their proclaimed but conveniently abandoned approach is favored by conservatives.

    JasonTD to me:

    I do find it disheartening that you basically dismiss 4 of the sitting Justices as irretrievably biased, but say nothing of the Justices on the other side of the fence.

    Because such a response would be out of context to the topic at hand. In addition I’ve yet to sufficiently observe either Justice Sotomayor or Kagan to understand their approach to jurisprudence. Justice Breyer has long been the most loyal justice to Congress, who is least likely to overturn legislation – at a rate 1/5 of that relative to Justice Thomas. J. Breyer’s bias is towards Congress as a Yale study found where they sought to find the rate of “activism” as they defined it, which was the propensity of a given justice to vote to overturn legislation. J. Breyer validated their findings of him in his book, Active Liberty where he not only accepted their conclusions, but overtly promoted them. Justice Ginsburg is a liberal who predominately promotes rulings which favor liberalism; I assume if someone knows who Justice Ginsburg is that they already know this about her.

    JasonTD:

    You lump Kennedy in with Scalia and Thomas (despite allowing for the possibility that Kennedy is more reasonable earlier in your post), accuse all four of being racist (making Thomas a term we all are familiar with, I suppose), and, of course, dismiss any reasoned argument against the Constitutionality of the ACA all in one fell swoop.

    I suggest reading the dissent. It’s as absurd as Dred Scott and joined by J. Kennedy. He was a wingnut on this case, exhibiting a classic example of wingnutesse when he commented on the case from the bench. I’ve yet to encounter one reasoned objection to the constitutionality of Obamacare when it comes to the commerce clause unless one is prepared to throw out nearly all commerce clause precedents since Wickard, which Robers, Alito, Kennedy, and Scalia are not willing to do. And I sought those commerce clause objections out.

    Racism stoked by the conservative media machine appears to me to be the most parsimonious explanation for why we get a infantile nihilist dissent and reaction from the conservatives on this case. What else explains their hypocrisy (think Raich), where Ginsburg pummelled them in her concurring opinion? Their abandonment of reason and their unprofessional treatment of J. Roberts? Their ranting – especially Kennedy and Scalia’s? It’s hatred they’ve been conditioned to spew out where their talking points adjoining that hatred are the very same racist dog whistles we’ve long seen from conservatives when it comes to President Obama. They’ve transformed themselves into something little better than Sarah Palin – acting out of emotion for the tribe rather than reason in defense of the Constitution.

  • Vall

    Michael Heath,

    Once I sifted through your response, I can see your point.

    What you’ve missed is that considering recent rulings, busterggi’s comment “So much for the apolitical SCOTUS – just as bought & paid for as any political organization.” may be a subtle observation that the burden now rests on proving they are not corrupted. So is it a provocative premise? Or not? It depends on the filters you look at life through. I would like to see the supreme court, and congress wear jumpsuits with their sponsors name on it (like race drivers) so we know which company we are voting for. Then you can finally get your citations, because right now it’s hard to tell who they are working for. So you see my filter? I admit it.

    The ebb and flow of comments here are usually casual in nature, so I took busterggi’s comment as an opinion, a clever observation of current events, or humor. Someone else may take it as a provocative statement or assertation, and start demanding citations. You seem to be the latter. Not that there’s anything wrong with that. I’m glad to see different points of view here, there isn’t an echo chamber anywhere on these blogs.

    So instead of liar, or strawman, call me a tone troll, because that at least is more accurate in this thread.

  • Vall

    As long as we are putting on English teacher hats, lemme try…

    I took the first line of a paragraph to avoid a giant tl;dr post. The first line is the important part because the rest of the paragraph supports it. Are you saying the following sentances you used contradicted the beginning of the paragraph?No, they support it, so that is called a quote.

    Quotemining implies deception or twisted meanings, and it’s hard to decieve anybody that has one of those newfangled mouse thingies with a wheel on it. You want citations and I cite your own comment; and you still don’t see it. I’m reminded of Asimov’s Foundation: “Such unsubtle escapism! Really. Dr. Fara, such folly smacks of genius. A lesser mind would be incapable of it.”

  • JasonTD

    Michael wrote:

    I observe that the four most conservative justices predominately support conservative political goals, even if it requires them to abandon their favored interpretative approach as all but four did in Raich, and even if their proclaimed but conveniently abandoned approach is favored by conservatives.

    You’re going to have to explain to me in more detail what Gonzales v. Raich shows. Scalia voted for it in a separate concurrance, but Thomas dissented. Alito and Roberts weren’t even on the Court at the time.

    Justice Ginsburg is a liberal who predominately promotes rulings which favor liberalism

    Well, thanks for confirming to me that at least one of the other Justices votes based on political ideology besides just the conservatives.

    I’m not presenting an opinion, I’m asserting a fact; so either I’m factually right or I’m factually wrong given it’s assertion which can be empirically answered. Not easily, but there are studies which seek to define the consistency of justices and then compare their inconsistencies to contemporaneous political objectives promoted by conservatives and liberals in such of a correlative relationship.

    These studies you refer to but don’t cite seem like a colossal waste of time to me. You can’t “empirically” prove that someone is biased, that’s just silly. A person might behave in what appears to be a biased way so often that you conclude that he/she is biased about something, but there is still enough subjectivity in what it means to be biased that I would never call such a conclusion a “fact”.

  • Chris from Europe

    Well, thanks for confirming to me that at least one of the other Justices votes based on political ideology besides just the conservatives.

    But that doesn’t necessarily mean she’s as corrupt as them. She could still be consistent with her judicial philosophy.

    You can’t “empirically”

    Well, it’s law, not physics or biology. If you can scholarly show that the Justice’s legal philosophy and his ruling don’t match, that should be sufficient.

    Given the conservative Justices’ attitude in respect to Affirmative Action, I have trouble seeing them as non-racist. That that would make Justice Thomas an “Uncle Tom”. Controversial about this is only that it is unfair to the fictional character. Thomas is the justice who wouldn’t just vote against civil rights laws, he already did that. See Voting Rights Act.

  • Chris from Europe

    That the court majority is directly influenced by money seems unlikely to me. And it isn’t necessary for the current outcome: The Justices have been selected for it.

  • Michael Heath

    JasonTD writes:

    Well, thanks for confirming to me that at least one [J. Ginsburg] of the other Justices votes based on political ideology besides just the conservatives.

    Chris from Europe:

    But that doesn’t necessarily mean she’s as corrupt as them. She could still be consistent with her judicial philosophy.

    And J. Ginsburg is very consistent with her judicial philosophy, building compelling arguments in every opinion she publishes that reconcile to past opinions. And as I pointed out earlier, none of the five conservative justices are consistent with their jurisprudence where they are almost always loyal to partisan or conservative political agendas even when they have to abandon their jurisprudence.

    The conservatives’ hypocrisy, in particular Justices Roberts, Thomas, and Scalia, is also revealed given they are most the vocal cheerleaders on the bench for deploying their type of claimed jurisprudence, in spite of being disproportionately disloyal to their own approach relative the approaches used by the non-conservative justices going back through the Rehnquist court. In the meantime J. Ginsburg quietly goes about her job delivering constitutional arguments loyal to a respectful jurisprudence approach.