I saw this tweet from the University of Colorado English Department this evening:

I didn’t realize today was Orwell’s birthday but the irony of that quote is astounding considering Justice Robert’s Old Yellowstain’s words here:

The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.

and this other Orwell quote on language:

Political language… is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.

applies here as well

Petitioners’ plain-meaning arguments are strong, but the Act’s context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act.

  I think these examples confirm the truth of Justice Scalia’s dissent and confirms this tweet of mine in response to the Colorado English Department acknowledgement of Orwell:

I think George Orwell’s birthday deserves recognition but I suspect it would have been better for the country if they just sent flowers.

Update:  An old question answered:

Of course they could both be true depending of how she defined “diabolical”.


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By Steve Eggleston

There is a term I use for judges who rule as though they are super-legislators taken from the original Planet of the Apes movie franchise, Lawgiver-In-Black. Supreme Court Chief Justice John Roberts began his journey to becoming a Lawgiver-In-Black with his ruling that, since the individual mandate fine that is part of ObamaCare was a tax, the bulk of it passed constitutional muster. That journey to being another member of the half of Republican nominees who turn out to be LIBs took another two steps this week.

The first ruling was a decision by the Supreme Court to not accept several states’ appeals of various circuit courts’ voiding of their bans on same-sex “marriage”, including Wisconsin’s constitutional ban. The circuit courts, and the district courts underneath them, all used Justice Anthony Kennedy’s “not a precedent” precedent in his decision voiding the federal Defense of Marriage Act, with Roberts at the time joining the 4-Justice minority dissent. As it takes 4 Justices to accept an appeal, it is at least plausible that Roberts has changed his mind on same-sex “marriage”.

The second ruling, a 6-3 ruling on an emergency petition putting Wisconsin’s voter ID law on hold, came down late Thursday night. A bit of history is required here (courtesy Ballotpedia):

– In mid-2011, Wisconsin passed a voter ID law patterned on Indiana’s voter ID law, which had passed Supreme Court muster in 2008.
– In late 2011, various liberal groups filed lawsuits seeking to block the law in both state and federal court.
– One low-turnout election, the 2012 spring non-partisan primary, was held with the voter ID requirements with no reported problems.
– Shortly thereafter, multiple judges in Dane County put state-based holds on the voter ID law, eventually ruling it unconstitutional under the state constitution.
– In April 2014, federal judge Lynn Adelman (a former Democrat Assemblyman) ruled it unconstitutional under the federal constitution.
– On July 31, 2014, the state Supreme Court ruled it constitutional under the state constitution, ending the state-based challenges.
– On September 12, 2014, a 3-judge panel on the federal 7th Circuit Court of Appeals, relying in part on the state Supreme Court, lifted Adelman’s injunction, saying that the state had a significant chance of winning a reversal on the merits. With respect to absentee ballots, the plan adopted by the Government Accountability Board, the statewide entity that runs elections, was for the muncipal clerks to include with the absentee ballots a notice that a copy of acceptable ID would need to accompany the ballot for it to be counted.
– Even though sample ballots were not available on most muncipalities’ websites as of September 12, and state law did not require absentee ballots to be mailed until September 18 (47 days prior to the general election), some municipal clerks had already mailed what was reportedly thousands of absentee ballots. The plan for those ballots was to mail the ID requirement notice separately.
– On October 6, 2014, that 7th Circuit panel did rule that Wisconsin’s voter ID was constitutional, holding that Wisconsin’s voter ID law is essentially identical to Indiana’s.

While the majority on the Supreme Court did not issue any justification for the order, the dissent authored by Justice Samuel Alito and joined by Justices Anthony Scalia and Clarence Thomas did mention a concern that the September 12 lifting of the injunction came so close to the election. Even so, their dissent noted that the Supreme Court “may not vacate a stay entered by a court of appeals unless that court clearly and ‘demonstrably’ erred in its application of ‘accepted standards.’”

The form of the order does not suggest that timing was the only consideration for putting a fresh hold on Wisconsin’s voter ID law. Indeed, if the Supreme Court decides to accept a duly-filed petition of a writ of ceratori, the hold will continue until final judgement is rendered.

Finally, there is an update on last week’s piece on the September jobs report. A source with knowledge of how the Bureau of Labor Statistics’ Household Survey is put together told Tom Blumer that a recent, unpublicized change in the definition of who is really looking for work has significantly reduced the number in the labor force and thus the unemployment rate. This is not the first time the veracity the Household Survey has been called into question – the BLS faked numbers in the survey in the runup to the 2010 election and, reportedly, the 2012 election.

11th Doctor: So why does the Gunslinger want you [Jex]?
Isaac: It don’t matter.
11th Doctor: I’m just saying, if we knew that
Isaac: America’s the land of second chances. We called this town Mercy for a reason

Doctor Who A Town Called Mercy 2012

10th Doctor:  You’re not actually suggesting we change our own personal history?

11th Doctor:  We change history all the time I’m suggesting something far worse

War (8 1/2th) Doctor:  What exactly?

11th Doctor:  Gentlemen I have had 400 years to think about this,  I’ve changed my mind.

Doctor Who  Day of The Doctor 2013

A little over a year ago the Supreme court upheld Obamacare deciding, contrary to everything the administration said when passing the law,  that it was a TAX and constitutional on that basis.  On July 2nd I linked to Jay Nordlinger who wrote the following:

“Roberts failed to do his duty — his constitutional duty. He’s not supposed to be looking at the political situation. He’s not supposed to think about his ‘legacy.’ He’s supposed to uphold the Constitution, plain and simple. The majority decision will come to be embarrassing. The dissent will stand as something true and admirable.”

I said, “So, do you think Bush 43 may have inadvertently saddled us with another Warren Burger?” “No!” said the judge. “Burger would never have written something so stupid” as the Roberts ruling. “He was not incompetent.”

This was a day after I concluded that the Chief justice changed his vote/opinion based on pressure and earned a new name:

A person has the right to change their mind based on facts, but a Chief Justice of the Supreme Court changing his mind based on pleasing the NYT or MSNBC et/al is the most dishonorable thing I’ve heard of in public service.  It’s a stain on the court, a Yellow Stain.

Bottom line the question has been answered:   Blue Eyed Hottie out, John Roberts old Yellowstain it is!

May you be happy in the choice you have made.

And his reward for this attempt to appease has not only been scorn but a politicized nominating process

Last week, with the Senate eliminating most filibusters on presidential nominees, was a sad one for the federal judiciary. It would be wholly inappropriate for a judge to apportion blame at the prospect that the voices of present and future Senate minorities have been effectively silenced in judicial confirmations. Now, even those with the most rigid and absolute beliefs can spend a lifetime on the federal bench without a scintilla of bipartisan support.

Well America is a land of second chances and the Chief Justice is going to get another one:

President Barack Obama’s health care law is headed for a new Supreme Court showdown over companies’ religious objections to the law’s birth-control mandate.

CNN elaborates:

The justices agreed on Tuesday to review provisions in the Affordable Care Act requiring employers of a certain size to offer insurance coverage for birth control and other reproductive health services without a co-pay.

At issue is whether private companies can refuse to do so on the claim it violates their religious beliefs.

I’ll have more to say about the word “Claims” tomorrow but The Catechism of the Catholic Church deals with the matter of contraception  and is even more explicit on Abortion where cooperation in one brings automatic excommunication.

You don’t get much clearer when it comes to the 1st Amendment.

However I’m not a judge so my opinion doesn’t matter but the opinions of the members of the court do.

Presuming Justice Roberts old Yellow Stain is embarrassed by his previous ruling and wishes to redeem himself this gives him a chance to correct himself based on totally different grounds.  Religious freedom is a founding principle of our country and the 1st Amendment the bedrock of our rights so it will be hard to critique an argument based on that.

But even if he is NOT embarrassed by his previous actions and still subject to pressure the game is different this time.

#1  The president’s numbers are horrible:

Only four out of 10 Americans believe President Barack Obama can manage the federal government effectively, according to a new national poll. And a CNN/ORC International survey released Monday morning also indicates that 53% of Americans now believe that Obama is not honest and trustworthy, the first time that a clear majority in CNN polling has felt that way.

According to the survey, conducted last Monday through Wednesday, 40% say the President can manage the government effectively. That 40% figure is down 12 percentage points from June and is the worst score Obama received among the nine personal characteristics tested in the new poll.

“A lot of attention has focused on the President’s numbers on honesty in new polling the past three weeks, but it looks like the recent controversy over Obamacare has had a bigger impact on his status as an effective manager of the government, and that may be what is really driving the drop in Obama’s approval rating this fall,” CNN Polling Director Keating Holland said.

It’s one thing to be pressured by a popular & powerful President in the middle of an election campaign, it’s another to be pressured by a lame duck president whose numbers are down and his honesty in question, particularly if you are going to be in government long after he is gone.

#2  Obamacare is hurting democrat re-elect numbers:

the Democratic lead has disappeared. A new CNN/ORC poll indicates the GOP now holds a 49%-47% edge.

The new survey was conducted last week and released Tuesday.

The 10-point swing follows a political uproar over Obamacare, which included the botched rollout of HealthCare.gov and controversy over insurance policy cancelations due primarily to the new health law.

A few months ago Democrats were talking about an outside chance of taking the house now,  the generic ballot is now reversed and we are seeing stuff like this in Senate Races:

The most significant part is that these words…

We asked Kagan about that today and she ducked the question more than once, blaming insurance companies instead.

…came from an ABC reporter. Not a Fox Reporter, Not a Conservative Blogger but a reporter for local ABC affiliate.

The source of this danger is the continued existence of Obamacare yet to vote on repeal or delay risks angering the base.  A Supreme Court decision striking it down solves that problem.  The Democrat party is about power, not principle, it’s one thing to put pressure on the court to uphold a law when it helps the party,  it’s another thing to put pressure on someone to do so when that law might cost you your house seat, your senate seat or your senate majority.

3.  The Obamacare effects:

In the last few weeks we have seen the cancellation of insurance policies en mass,

An extra legal attempt by the President to change is law

Insurance rates skyrocket

Security Breaches in the exchances

And video of  corruption among “Navigators”

And I didn’t even include the web site blowing up on that list.

Obamacare was unpopular before these things happened, it’s much more unpopular now.  The last time a Chief Justice upheld a law that unpopular with the people was in the Dred Scott decision.  Do you really think a justice worried about his reputation like old Yellow Stain will want to be the next Roger Taney?

In the end it will be up to all nine justices on the court.  Frankly we already know how 7 will vote.  The deciding votes will be Justice Kennedy and Chief Justice Old Yellowstain.  Nobody every knows which way Justice Kennedy will vote, but as for the Chief, whether is motive is principle, or pressure now is the perfect time to remove that stain from him.

For the sake of the country let’s hope he’s wise enough, brave enough, or pragmatic enough, to do so.


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