Conservative Lawyer of Harvard : "Chief Justice John Roberts correctly realized that he couldn't jump off that cliff without precedent or logic supporting him. Kennedy, Alito, Scalia, and Thomas went all in." - "Repeal and Replace" is foolish Fantasy

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The dissent of the "Gang of Four" dissenters is extremely shameful and unworthy of Justices of the U. S. Supreme Court. ( "unsupported legally and it's a mess logically" )

Lawyer David Frum considers the "Repeal and Replace" slogan of Mitt Romney as a very foolish Fantasy.


The Daily Beast
Did Scalia Scare Off Roberts?
June 29, 2012

by David Frum
Frum earned his Juris Doctor (J.D.) at Harvard Law School in 1987. He has been very conservative and has worked with the "National Review".

David Frum is a contributing editor at Newsweek and The Daily Beast and a CNN contributor. He is also former economic speechwriter for President George W. Bush, and author of the first "insider" book about the Bush presidency.


Did Scalia Scare Off Roberts?


Some excerpts :

The jointly-written dissent was intended to be majority opinion. Any informed reader would reach that conclusion after the first three pages --- and then again when seeing the fact that any and all problems with the actual majority decision are addressed only at the end of it, following an oddly placed " * * *."

The following is speculation, but plausible, and would be an interesting parallel to the conservative legislative strategy. Any objective legal observer would tell you (and I'm trying to be one here) that the dissent's treatment of the severability issue is detached from 200 years of constitutional law. It's unsupported legally and it's a mess logically. It also includes a citation to a quote that Harry Reid gave to the New York Times in Janauary 2010 concerning the bill --- this from at least two justices (Scalia and Thomas) who routinely say that any use of legislative history is a sham because it's necessarily incomplete. One wonders what a quote not uttered on the floor of Congress but to a journalist would constitute in that case? In any event, rather than holding the mandate costitutional and those portions of the bill inextricably linked with it (guaranteed issue/community rating), four members of the Court were primed to throw the whole bill out. That level of judicial activism, in a context like this one, would be nearly unprecedented.

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What was written was not measured judicial analysis, but rather an opinion that started with a goal --- throw the bill out --- and then figured out how to get there, blowing by any precedent in its path.

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But severability had been considered by the Court literally dozens of times, and the four dissenters charged right by what those decisions had said.

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