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July 9, 2012
Supreme Court flip-flops: Health care wasn’t the first. It won’t be the last.
Here’s the first entry in our weekly post series, “The Pitch.” This post, written by our very own Seth Millstein, analyzes the Supreme Court’s recent decision on the Affordable Care Act in wider historical context. Find him on Twitter over here.
Stepping back and looking in wider context: Conservatives were very upset with Chief Justice John Roberts last month when he provided the tie-breaking vote to uphold the Affordable Care Act. That anger grew exponentially when reports surfaced that Roberts had originally voted to overturn the law, but then switched his vote to side with the court’s liberals. Why did Roberts flip-flop? How common is vote switching on the Supreme Court? And how often has a single justice’s indecisiveness significantly affected the law of the land? ShortFormBlog reports. (Read more after the jump.)
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Preface: How justices think
These are not nine all-wise people who retire to a secret room and come up with the answer that nobody else can figure out. They’re nine human beings who are trying to wrestle with the problem the way the rest of us do.
Former SCOTUS clerk Bill McDaniel • Discussing the nature of Supreme Court justices changing their minds. The Court has a very heavy case-load in a given year,  and the June period is especially heavy. WIth much wheeling and dealing taking place behind the scene, especially among moderates, it’s very likely that nobody’s mind is made up on any individual case immediately.
Some notable historical swaps
11 decision-changing swaps made between 1991 and 1994 alone
Abortion rights In 1992, a last-minute vote switch prevented the overturning of Roe v. Wade. A case involving a highly-restrictive Pennsylvania abortion law made its way to the Supreme Court. Advocates of the legislation argued that, while the law did indeed violate Roe, Roe itselfwas unconstitutional, and should thus be overturned. During the first vote, the court ruled 5-4 in favor of overturning Roe …but then, at the last minute, Justice Kennedy changed his mind, voting with the liberal wing of the court instead.
VCRs (seriously) Do VHS machines violate copyright law? That was the question before the court in 1983, when the entertainment industry argued that, because the devices enable people to record and pirate copyrighted material, they should be outlawed. The initial vote was 5-4 against the video cassette recorder, but Justice Sandra Day O’Conner switched her vote after the majority opinion was written, thus protecting the rights of future nine-year-olds to tape The Mighty Ducks when it came on TV. A single tear for Emilio Estevez.
Homosexuality In 1986, the court debated whether or not anti-sodomy laws were constitutional. Justice Lewis Powell had originally agreed that “homosexual acts,” as they were ominously referred to back then, were permissible in the privacy of one’s home, but then changed his mind, keeping the ban on sodomy in place. This decision was ultimately less influential than Kennedy’s vote-switch, however: Three years later, the court overturned the ruling, and now gay sex is constitutionally-protected.
Reasons for vote swapping
To put it simply: It’s not always what you think it might be. There are several reasons a justice might change their vote midway through the process (although of course, plebes like us will never know for sure):
image Many people suspect that Roberts switched his vote to protect the court from being seen as an overly-partisan institution — an understandable fear, considering that the court had recently made high-profile decisions that proved very unpopular, such as Citizens United.
roots In the sodomy case, Powell’s decision was reportedly influenced by the fact that the plaintiff in the suit, a gay bartender who had been “caught” having sex with another man in his own bedroom, hadn’t actually been prosecuted, but rather filed a civil suit against the state.
effects The VHS case is an interesting one: While O’Connor agreed that VHS violated copyright law, the majority opinion also overturned a lower court’s ruling (on a different, but related question) that she agreed with. Apparently, it was more important to her to uphold that decision.
» Something to keep in mind: Finally, when discussing the ACA ruling, it’s important to keep some perspective. A lot has been made about how the amount of detail that leaked about the court’s internal deliberations was unprecedented — but that’s what they said in 1986 about the Powell case. (“Such information rarely reaches the public,” the LA Times wrote of the leak.) And the theory that Roberts switched his vote to preserve the integrity of the court as an institution? That’s what they said about Kennedy with regard to the abortion case. In short, while the behind-the-scenes maneuvering of the various justices is no doubt fascinating, the process by which the court upheld the ACA wasn’t as anomalous as a lot of the reporting is suggesting.
Seth Millstein is a writer for ShortFormBlog and The Daily. Reach him at @SethMillstein.
 

Supreme Court flip-flops: Health care wasn’t the first. It won’t be the last.

Here’s the first entry in our weekly post series, “The Pitch.” This post, written by our very own Seth Millstein, analyzes the Supreme Court’s recent decision on the Affordable Care Act in wider historical context. Find him on Twitter over here.

Stepping back and looking in wider context: Conservatives were very upset with Chief Justice John Roberts last month when he provided the tie-breaking vote to uphold the Affordable Care Act. That anger grew exponentially when reports surfaced that Roberts had originally voted to overturn the law, but then switched his vote to side with the court’s liberals. Why did Roberts flip-flop? How common is vote switching on the Supreme Court? And how often has a single justice’s indecisiveness significantly affected the law of the land? ShortFormBlog reports. (Read more after the jump.)

Read More

13:10 // 1 year ago
July 8, 2012
Into his conference call, the CNN producer says (correctly) that the Court has held that the individual mandate cannot be sustained under the Commerce Clause, and (incorrectly) that it therefore ‘looks like’ the mandate has been struck down. The control room asks whether they can ‘go with’ it, and after a pause, he says yes.
SCOTUSblog’s Tom Goldstein • Looking back at what caused the mistaken reporting of the Supreme Court’s Affordable Care Act decision, in a minute-by-minute breakdown. In case you need something very epic to read, here you go — Goldstein’s post, which he claims is his first effort at “real journalism,” is 7,000 freaking words long. Or, you know, longer than the usual article we link. (ht Dave Weigel)
10:51 // 1 year ago
July 5, 2012

Fundraising numbers up for Senate Democrats following “Obamacare” ruling

  • $2.5 million raised in first 3 days after SCOTUS ruling source

» The spike in donations has put the Democratic Senatorial Campaign Committee on track for a historically-high month, only a few weeks removed from a record-breaking $5.6 million in donations during May. The donation numbers also add legitimacy to Democratic claims that the ruling galvanized the left every bit as much as it galvanized the right. Though, even when combined with the Democratic Congressional Campaign Committee’s similarly high $2.3 million in donations, the numbers seem small compared to the more than $5.5 million raised by Mitt Romney in the first 24-hours after the decision.

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18:32 // 1 year ago
June 29, 2012
shortformblog:

President Obama’s “Dewey Defeats Truman” moment. Man, CNN is never going to live this one down (original here; if anyone knows who made this Photoshop, let us know).

UPDATE!!!!! WE HAVE A SOURCE!!!!! This amazing image is the fancywork of Gary He. Here’s how he did it:

After initially saying “I’m trying not to comment on it,” when reached by telephone, He relented and talked a little bit: “I was following the conversation on Twitter and I made a comment about how CNN’s gaffe was this generation’s Dewey Defeats Truman moment,” he said. Lightbulb: On! He threw together the illustration and tweeted it, thinking “maybe I’ll get a few laughs.”His image, posted on Yfrog, has been viewed more than 28,000 times. And it’s not just dominating your Facebook feed: In Salon, Alex Pareene used it as the lead image for a blog post. Marc Ambinder tweeted to He that the White House had seen the image. The New York Times ran the darn thing!

Let’s give Gary some high-fives! (ht Holly Ojalvo) 

shortformblog:

President Obama’s “Dewey Defeats Truman” moment. Man, CNN is never going to live this one down (original here; if anyone knows who made this Photoshop, let us know).

UPDATE!!!!! WE HAVE A SOURCE!!!!! This amazing image is the fancywork of Gary He. Here’s how he did it:

After initially saying “I’m trying not to comment on it,” when reached by telephone, He relented and talked a little bit: “I was following the conversation on Twitter and I made a comment about how CNN’s gaffe was this generation’s Dewey Defeats Truman moment,” he said. Lightbulb: On! He threw together the illustration and tweeted it, thinking “maybe I’ll get a few laughs.”

His image, posted on Yfrog, has been viewed more than 28,000 times. And it’s not just dominating your Facebook feed: In Salon, Alex Pareene used it as the lead image for a blog post. Marc Ambinder tweeted to He that the White House had seen the image. The New York Times ran the darn thing!

Let’s give Gary some high-fives! (ht Holly Ojalvo

22:01 // 1 year ago
The man who had the most traffic to gain from yesterday’s news.

The man who had the most traffic to gain from yesterday’s news.

14:39 // 1 year ago
June 28, 2012

Surprise! Excuses have arrived for this morning’s incorrect SCOTUS reports

  • cnn In a statement, the network blamed their much-maligned error on earnest reporting of the decision as it was read by Chief Justice Roberts. Admitting their mistake, the statement says that “CNN regrets that it didn’t wait to report out the full and complete opinion regarding the mandate. We made a correction within a few minutes and apologize for the error.”
  • fox news Fox pointed to earnest reporting as the cause of incorrect reporting too, but with a small difference. They don’t think their actions merit an apology, saying, “By contrast, one other cable network was unable to get their Supreme Court reporter to the camera … Another said it was a big setback for the President. Fox reported the facts, as they came in.” source

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14:53 // 1 year ago
politico:

From POLITICO Pro this chart shows the main provisions of the law after the ruling.

For those keeping score at home: 24 upheld, one on hold by Obama himself, one weakened by the Supreme Court.

politico:

From POLITICO Pro this chart shows the main provisions of the law after the ruling.

For those keeping score at home: 24 upheld, one on hold by Obama himself, one weakened by the Supreme Court.

(via newsweek)

12:43 // 1 year ago

Romney’s response to the Supreme Court ruling. Key words: ”Obamacare was bad policy yesterday. It’s bad policy today.” He thinks this is a mandate to get Obama out of office.

12:41 // 1 year ago
Please, immediately, stop taunting on social networks about CNN and others’ SCOTUS ruling mistake and the AP getting it right. That’s not the impression we want to reflect as an organization. Let our reporting take the lead.
Associated Press Central U.S. regional editor David Scott • In a memo to their reporters and editors, asking them to stop taunting other media organizations that got it wrong.
11:57 // 1 year ago
President Obama’s “Dewey Defeats Truman” moment. Man, CNN is never going to live this one down (original here; if anyone knows who made this Photoshop, let us know).

President Obama’s “Dewey Defeats Truman” moment. Man, CNN is never going to live this one down (original here; if anyone knows who made this Photoshop, let us know).

11:49 // 1 year ago