RUSH: It doesn’t matter as to the outcome whether or not Chief Justice Roberts was intimidated and threatened, but it does matter. Finding out conclusively won’t change anything, but it will be quite eye-opening for people if it is established that the public intimidation of the chief justice by Obama and senators and so forth resulted in a changed vote. That will de-validate the court in terms of people’s respect more than any decision could, whatever it would be.
Time will tell.
RUSH: I mentioned earlier the Volokh Conspiracy. It’s a blog that circulates in legal circles, and apparently, ladies and gentlemen, a lot of people are doing what you and I are doing. “What in the name of Sam Hill happened here?” It was thought, and nobody knew for sure, but there were tea leaves, and I’m an expert now in the tea business. I know tea leaves, and there were tea leaves out there that the mandate was going down. The White House thought it was going down. The media thought it was going down. And, in fact, the first announcement today was the mandate was ruled unconstitutional. That was the first thing that got reported.
And then it was a few short seconds later that the first “uh-oh” came. Wait a minute, the mandate’s unconstitutional, but the whole thing stands because Chief Justice Roberts is calling it a tax? So after the shock wore off, people started trying to figure out what in the heck happened. And all the news networks, even CNN got it right, reported that the mandate was struck down. Fox reported it was struck down. AP reported it struck down. Washington Post reported the mandate was struck down. It was a cruel trick to play on the American people. Mandate struck down, and mere seconds later, “uh-oh.”
Now, the Volokh Conspiracy. It’s a post by gentleman named David Bernstein. Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion (in particular, he consistently refers to Justice Ginsburg’s opinion as ‘The Dissent’).” Earlier this week there were stories that Ruth “Buzzi” Ginsburg was writing the dissent. That did leak. And these guys are referencing it here at the Volokh Conspiracy blog, and they say that in his dissent, Scalia consistently refers to Justice Ginsburg’s opinion as the dissent.
“Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on Commerce Clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill,” which it is doing.
Now, I want to be very careful, ’cause none of this matters in terms of the outcome today. If people found out, if they could prove that Roberts changed his vote because of intimidation, it won’t change anything about this outcome. And I don’t think anybody is ever gonna be able to firmly establish that this happened. So I don’t want to be misunderstood here. But this decision is so shocking to people. Folks, there’s nothing constitutional about this law. It is utterly shocking. What happened today is disgraceful, and that’s why the rumor mill is ginning up, because people are trying to find a logical explanation because the Constitution effectively didn’t exist today when this decision was announced.
And the people trying to figure this out are obviously going to look into the rumor mill and try to find some way of explaining it. It’s not gonna change anything. So you might say it’s pointless to focus on it, other than it being gossipy and interesting in that regard. However, if it were ever confirmed as true that a chief justice, any justice, was motivated by virtue of threat and intimidation to change a vote, if the threat of intimidation and whatever else can result in vote changing or a vote, period, then of course you’d have to conclude that essentially you got organized crime running the show, not the Constitution. Organized crime definitionally, not literally.
There’s another blog out there that is rolling with the same theory. It’s called Legal Theory Blog, and they’ve come up with the same thought. And they’ve got an article: “Evidence that the Votes Shifted After Conference (Initial Vote to Declare Mandate Unconstitutional).” They’re looking at this. And, by the way, all of this is permissible. They can vote, change their votes whenever they want, up until the time of announcement, or whatever limit they place on themselves. The justices in the court are not bound by their first votes, by their original votes. It has a larger meaning, obviously, and it takes me back to Artur Davis. I’ll read you the second paragraph of Artur Davis’ e-mail today.
“But there is a larger story: this result shows the left’s continuing capacity to shape elite opinion by marginalizing positions that roughly half the country holds.” What he means, conservatism has been marginalized to be kookville. “Just as the left has caricatured opposition to same-sex marriage and abortion as retrograde and extreme, it just pulled off the same feat in the context of Obamacare: the case was made, and Roberts bought it, that a Court that has struck down 169 congressional statutes would somehow be dangerously activist if it added a 170th one to the mix. Its an undemocratic, disingenuous sleight of hand that the left is practicing, but it is winning: the cost is that it only widens the gap between Middle America and the elite.”
So his point here, is that whatever intimidation was used on Roberts, it was, “Hey, Judge, do you really want to be thought of as a nutcase kook right-wing extremist?” And that’s what Artur Davis said, whatever the pressure was, and if there was such pressure, that’s how it manifested itself. Anyway, folks, I feel nervous even mentioning all this stuff to you because it gets into the area of pure speculation and gossip, and I want you to understand that that’s what it is. And there’s a reason for it. This is inexplicable to people, and they’re trying to understand it. What in the hell happened here? What happened to the Constitution? That’s why all of this is being visited the way it is. But no matter what the speculators come up with, it’s not gonna change the outcome today.
RUSH: Okay. Look, let’s cut to the chase here, folks. The reason that I’m nervous with all this speculation that Chief Justice Roberts “caved” and who “got to him” and who intimated him is simple. The reason I’m having trouble with this is that I don’t think that’s what happened. I believe I mentioned earlier this week (it might have been yesterday or the day before) that I had been warned years ago. I was in a conversation about justices on the court and how they respond to public pressure in the Washington Post Style Section.
You know, the usual obligatory way you go and discuss the way that the media tries to influence outcome of votes on the Supreme Court. And all those conversations centered around Justice Kennedy as the swing vote. And I was warned, “It’s not Kennedy you have to look out for. It’s Justice Roberts.” I can’t tell you who told me. No, no! I know who it is. It’s not that I’ve forgotten. It’s that I can’t mention it. I think really what happened here is not a cave. I don’t think there was a cave, folks.
I think Chief Justice Roberts is establishing his legacy. I think it’s what he wanted to do. I think this is his imprimatur. This is The Roberts Court, like we had The Warren Court and we had The Rehnquist Court. This is The Roberts Court. This is his stamp on it. I know it’s fun to think about the intimidation that might have occurred and who succeeded with it and so forth. There’s also… I don’t want to mention any names on this, either, because I don’t mean to embarrass anybody. But the other thing going on that you might have seen or heard yourself is this:
“Hey, wait a minute, Rush! Rush, wait a minute! Didn’t this tax increase originate in the Senate? Aren’t the taxes in the Obamacare from the Senate and therefore they’re unconstitutional?” Well, where are we gonna go on that? We gotta go back to where? The very same court that just said it’s okay! So what do we do? Okay, even if that’s a valid point. I understand this kind of stuff is gonna happen on a day like this. People are grasping at straws. They’re trying to look at something, anything they can grab onto to explain this and to give us some hope that we can reverse this.
RUSH: I have my wits about me, folks. I always do. I am not sidetracked. I am not diverted. I am not distracted, nor am I intimidated. I’m gonna tell you exactly what happened here, and it’s not what the rumor, speculation is. I understand that. This decision’s inexplicable to people. They’re desperately trying to come up with an explanation that would fit in their minds. “My gosh, what happened here?”
Here’s what happened. The Supreme Court, a majority of the Supreme Court, found Obamacare unconstitutional. They found the mandate unconstitutional. The chief justice, John Roberts, kicked into activist mode and found a way around that. I don’t care if he found a way around it because he was intimidated by Obama, or Patrick Leahy, or somebody in the media. I don’t care. Because I don’t think he was. I think he did what he wanted to do. He has sided with the liberal justices more often than not in previous decisions. I just throw that out as a statistic, not as evidence. I think he’s building a legacy. This is what he wanted to happen. He found a way for it to happen. And so now, folks, it’s game on. And I know some of you may get sick and tired of always being in this position. Why is it always game on? Why is it always us that have to do — well, it’s the way of the world. It’s simply the reality we face today.
We are up against people who believe in tyranny. We are up against people who do not want there to be individual freedom and liberty in this country. That’s what we face. We don’t face people who like a level playing field with the will of the people being the determining factor. It’s not the people we’re up against. We’re up against people who do not like the US Constitution. We’re up against people who do not like this country as founded. We’re up against people who want to change it. They have not liked it for a long time or they’ve never liked it. We don’t have time to try to analyze why. We don’t have time to try to figure out how they ended up being this way.
We now are governed by a monstrous assault on our personal liberty and freedom. We are governed by it. We are living under its thumb. Jackboot. And it is now time to wrap this monstrosity around Obama’s head. He will not tell anybody what this bill means. It’s up to us. And we can’t even count on Romney to do this. All we can do is hope that he gets it right. We have to tell people what this bill is, and we have to be able to show them and tell them that’s what this bill is and explain it. This bill is death panels. This bill is massive taxes on our behavior. We have to be able to explain that what happened today does not mean free health care for the poor. If anything, it means the poor will lose their health care, what with this Medicaid expansion.
We have death panels now. We have massive taxes, tax increases. We have taxes on our behavior. We have a tax if we choose not to have health insurance. You young people who don’t want to buy health insurance because you don’t need it yet. Too bad. If you don’t, you pay a fine, and there are 16,000 IRS agents newly hired who are going to be enforcing this thing. There are 2700 pages in this monstrosity. There are going to be regulations that haven’t even been dreamed up yet because, as the bill states countless times, “As the secretary shall determine.” The secretary of Health and Human Services can pretty much write the law as he or she goes.
There will be denial of care. Not everybody’s gonna get health care, whether they’re insured or not. It’s gonna be determined that some people’s health care is not worth the cost, either the disease is too far advanced or the disease is too far advanced and they’re too old, or perhaps they’re not of the right political party. Don’t you dare discount that. We are up against people who want us — Artur Davis is exactly right — marginalized. Half of this country they want marginalized as extreme wacko alien kooks. These are people that would be happy to deny your grandmother health coverage if you didn’t vote for Obama, and I am not exaggerating. These are people who itch, bureaucrats and so forth, who itch for that kind of power over people. This law provides it.
Rationing, it’s all part of the mix. We’re $16 trillion in debt. Not everybody’s gonna get health care. And I don’t care what Obama says, not everybody’s gonna get the best health care. Not everybody’s gonna get equal health care. Not everybody’s gonna get equal insurance. Nothing Obama says about this has very much relationship to the truth. You’re not gonna hear about any of this stuff that I’m telling you. But it is game on. We’re gonna have price controls, because premiums and things, prices of health care are going to skyrocket. And these experts, these statists, the people who want total dominion and control over your life are gonna be shocked, because some of these people are true believers and they really believe all the propaganda.
They believe it’s gonna be cheaper. They believe it’s gonna get more plentiful, and when it doesn’t they are going to be shocked and stunned and they’re not going to understand it, just like when every other program of theirs fails, they’re clueless. All they want is credit for their good intentions. But they’re gonna have to deal with the failure. They’re gonna have to deal with the problems this bill creates. So there will be rationing. There will be price controls. There will be massive deficits. And all of this needs to be wrapped around the head of Barack Obama and every Democrat running for reelection who supported this thing, which is every one of ’em. That’s where we are. That’s what this is, and now this precedent, set by this ruling today, where the government can tax behavior, not just your income, not just your user fee at a public park or a federal park, or not just your gasoline tax. Now sky’s the limit. Whatever they want to tax, they can. That was just affirmed via this decision today.
Now, I must say there are some people out there… It doesn’t matter who. And this is quite natural, too. I understand this psychologically. There are people who are trying to point out positive aspects in the Roberts ruling. There are people who are saying, “We gotta be very careful, Rush! John Roberts is a George Bush appointee. We don’t want to dump on John Roberts.” Um, sorry. This is an appalling, disgraceful decision — and it’s going to be remembered as such.
This decision, this ruling originally was found to be unconstitutional. According to the Commerce Clause, it was unconstitutional. And what happened was the chief judge found a way, going activist, to make sure this bill survived. And it was the chief justice who accepted a very little used administration argument that, “Hey, it’s tax,” even though we played the tape where Obama said it wasn’t a tax. He went to the mat telling George Stephanopoulos in 2009, “It’s not a tax increase, George.”
They knew that if this bill were sold as a tax increase, it’d fail.
Obama was out there saying, “Nobody who makes under $200,000 a year will see their taxes go up as long as I’m president.” Everybody’s taxes go up and sometimes monstrously high here. Obama went to the end of the world trying to convince people this is not a tax increase. And when the mandate was running into trouble, then they tried to say, “Well, maybe it is a tax.” They sent their little Verrilli up to the court to argue, “It could be a tax.” They weren’t excited about it. They didn’t want to sell it that way.
It turns out they didn’t have to. The chief judge found it! He said (summarized), “You know what? I’m just gonna call it a tax. The government can do that. They can’t make everybody buy health insurance with the mandate, but they can with the tax code.” That’s what happened today. It’s an appalling, disgraceful decision.