John Marshall

Big Chief

Normal 0 false false false EN-US JA X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman";} IN THE WEEKS BEFORE the Supreme Court decided the fate of the Affordable Care Act, conservatives became increasingly worried that Chief Justice John Roberts was about to lose his nerve.

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In 2006, at the end of his first term as Chief Justice, John Roberts told me that he was determined to place the bipartisan legitimacy of the Court above his own ideological agenda. But he recognized the difficulty of the task. “It’s sobering to think of the seventeen chief justices,” he said.

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In the current issue of TNR, I suggested that the health care decision represents a “moment of truth” for John Roberts because, if the Supreme Court overturns the Affordable Care Act by a 5-4 vote, Roberts’s "stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.” This observation was intended as nothing more than a statement of the obvious. It has nonetheless provoked an outraged reaction from conservative commentators.

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[with contributions from Matt O'Brien and Darius Tahir]  Five and a half hours -- that's the time Supreme Court justices have set aside for oral arguments in the lawsuits against the Affordable Care Act. And you'll forgive me if I find that a little unsettling. As readers of this space know, I've long believed that the law's individual mandate is constitutional. Yes, the Supreme Court could reach a different conclusion. The justices can say pretty much whatever they want.

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The Mirage

I. The American dream of politics without conflict, and of politics without political parties, has a history as old as American politics. Anyone carried along on the political currents since 2008, however, might be forgiven for thinking that the dream is something new—and that a transformative era was finally at hand, in which the old politics of intense partisan conflict, based on misunderstanding, miscommunication, and misanthropy, could be curbed if not ended. After the presidency of George W.

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I. Moments after Justice John Paul Stevens announced his intention to retire from the Supreme Court, Republican senators warned President Barack Obama not to appoint a judicial activist to replace him. Senator Orrin Hatch promised Obama “a whale of a fight if he appoints an activist to the court” and Senator Mitch McConnell warned that “Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law." But Hatch and McConnell’s definition of “judicial activism” is topsy-turvy.

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POTUS v. SCOTUS

Barack Obama is gunning for a confrontation with the Supreme Court, and Chief Justice John Roberts has signaled that he welcomes the fight. Last week, the chief justice described the president’s State of the Union condemnation of the Citizens United decision as “very troubling” and complained that the speech had “degenerated to a political pep rally.” Roberts was making an argument about etiquette--dissent was fine, he said, but Obama had somehow transgressed the boundaries of civilized discourse by delivering his attack to a captive audience.

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In a recent TNR article about the Citizens United decision, “Roberts versus Roberts,” I argued that the chief justice has so far failed to achieve his goal of promoting narrow, unanimous decisions rather than ideologically polarizing ones. After the piece came out, Ed Whelan claimed that Roberts had never promised to try to lead the Court in such a fashion.

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Last month, the Supreme Court handed down its most polarizing decision since Bush v. Gore. The 5-4 ruling in Citizens United v. Federal Election Commission called into question decades of federal campaign finance law and Supreme Court precedents by finding that corporations have a First Amendment right to spend as much money as they want on election campaigns, as long as they don’t consult the candidates.

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Richard Posner on why District of Columbia v. Heller, which invalidated the District's ban on the private ownership of pistols, is an appalling mistak

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