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Joining us now is Tom Goldstein founder of scotus blog.
-- also a litigator he's argued 25 cases before the Supreme Court.
We also welcome Juan Williams Fox News political analysts -- and gentlemen thank you for being here Tom let me begin with you.
Upholding the mandate.
-- all over the fire that we've heard about this tortured.
A lot of folks are saying that Chief Justice John Roberts is now.
While the modern day Earl -- -- effect.
There's no way John Roberts is a very solid conservative.
Justice and Chief Justice this is the only time his entire career at that.
He is joined with the former little members of the Supreme Court against for conservatives he had 153 case and it's very first here.
And conservatives who have been long -- and his for decisions in the past are gonna get a lot of decisions that they really like going forward.
I hate you don't to what degree do you think -- -- that that is shall have two.
That that is stabbed -- conservatives into a nation that found.
In opposing Obama care to the point that over -- want it repealed in poll after poll.
Most -- don't understand the decision to legal minds that are supposed to be our our new book.
Are there -- are sure goes through all of this.
They can't even figure out what happened.
Not say where people can figure out -- which is that conservatives lost and you know there's so much anger at chief Justice Roberts the sense is that -- a trader here.
And I think what we've seen this morning if you look at Wall Street Journal editorials columns and blogs.
It's all over that somehow Roberts flipped on -- internally that he was originally.
Going to rule that the mandate was unconstitutional on any grounds.
-- but decided politically that he was gonna look out for the credibility of the court and he made a political decision.
And there's all sorts of -- people point to writings about the possibility that.
Justice Ginsburg's words were originally described as that this anybody concurrent opinion.
So people I think are dip are demonizing.
Roberts right now from the right because they're so angry with -- I haven't actually and one and -- I really haven't heard anyone demonize him.
What should consider calling him Earl Warren of the modern era.
-- I thought that was that was wonderful I got a lot of your education occupied country large -- way atop every right let's go to that point you know Brad DeLong Paul Campos.
Putting forward this theory that.
-- -- he joined at the last minute the liberal wing to make their decisions into the majority opinion.
You might think this is.
Now I think this is another illustration of conservative disappointment I think it's very unlikely.
It's pretty clear from the assignment patterns of how the opinions were handed out that the Chief Justice had the main opinion from the very beginning so I think it's.
Very unlikely that he knew indications coming for two years and -- at the last second.
I also think conservatives need to remember that there are two kinds of conservatives in here this ideological conservatism.
But there's judicial conservative the conservative -- and that they also left and John Roberts and that's the heart of his opinion he says look.
The Supreme Court should be -- -- the last resort not the first resort my job here isn't to strike down a major piece of legislation by congress unless there's no way I can save it.
And so there's a lot to be admired.
Evil is -- -- -- first corollary Tom though order true is that his job to save it.
On the other hand.
Well if usually not intimately well it usually he's not supposed to rewrite it and I don't think he thought -- was rewriting it here was the government's back up argument.
And it took some you know some -- criticize him for linguistic gymnastics but.
We're talking about something was debated in the country for many many decades I think John Roberts who knows what he thinks about the legislation he may -- be perfectly happy if Republicans can win -- election and get it repealed.
But he said.
Don't come to me in the first -- to strike this down if I can find a way to sustain it that's my job.
You're right -- look Camilo like he was playing twister he stretched so far.
To find a basis through which to justify ruling sport.
But I will say that the the other -- other side of this this today it has been opinions that say in fact liberals.
May be delighted with what he had to say about taxes and -- but they do not going to be happy that John Roberts.
Who is always been a big supporter of the commerce clause and it's expansive nature.
Is now set a limit.
And that they're going to be a rush of up claims saying wait a second the commerce clause has gone too for our big government has grown too large.
And we now have a basis.
In this decision on which weakened somehow curtail the powers of the commerce clause.
You know it is -- is we examine that -- layman Tom sitter and watching just as it is wants adjustment.
-- here we we we see a Chief Justice who joins with the liberal wing with which as you point out he's never been associated before.
And subway the swing.
The swing vote on the -- the court Justice Kennedy writes the fundamental problem of the court's approach to this case is this.
It saves a statute congress didn't outright.
The court regards it strains statutory interpretation is judicial modesty it is not.
It amounts instead -- vast judicial.
Let me ask you this that's just something that all of us who are not attorneys can understand very simple question.
Is there another instance that comes to mind and -- I ask you this have you as well.
Is there another instance in which -- have ever seen the solicitor general stamp for the that the Supreme Court.
And say that we are going to we believe that this is use whatever the word might be in this instance a penalty.
And if you don't believe it's a penalty we believe it is a tax whichever is most convenient.
Two year terms of mark that'll leave you with their decision you're comfortable -- I mean in what instance do you see someone do such area remarkable job.
Well on one hand and the other.
Well the solicitor general did make this argument that it was attacks and the chief justice's opinion has a whole bunch of cases that it sites.
About the nature of what is and isn't attacks that dissent is obviously apoplectic here believes that -- incredibly important principles and the Chief Justice agreed with a lot of those -- Of a difference -- trauma and -- -- I'm really asking you again is there another instance which we you know ignorant -- Cannot -- into court and say yeah you know.
-- kind of we'd sure like to see how it is that in any other instance the court tolerates being told that one thing is.
The number one -- if you don't believe -- the number one believe please its number two we win either way I mean that's heads I win tails you always as a non.
I know I know it's not that it's called a back up argument and it's actually incredibly common and it is.
Here's my first theory it's my biggest near the administration wanted to broad reading in the congress caused the court's move for more liberal justices fought hard for it.
Justice Ginsburg read -- dissent from the bench to the majority holding narrowing the commerce clause but they had a back -- argument that was.
Just about the imposition of attacks and the Chief Justice.
There's no flaming liberal.
Recognized and decided that that was the right way to read along.
Well on the runway view I think -- -- tailback the wind.
Heads you lose I think that that's pretty good -- that.
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