June 29, 2012

Regarding Chief Justice Roberts

I’m not happy with yesterday’s ObamaCare decision. I believe the whole thing should have been overturned as unconstitutional. However, a quarter century of studying and watching the Supreme Court leaves me unsurprised by the fact that the healthcare law survived – even if I find the grounds for declaring it acceptable to be quite weak.

What’s more, I’m quite surprised that Chief Justice John Roberts is the author of the controlling opinion in this case (Link to PDF of opinions here).

But let’s consider this for just a minute.

1) Why uphold the law? That is easy. Any law that is brought before the court is presumably constitutional unless it is shown not to be. This is sort of the legal equivalent of the rule we all had in pick-up baseball games as a kid – “the tie goes to the runner”. Or, to use a different sports analogy, all it takes for a touchdown is or the tip of the ball to cross the plane of the goal line. Like it or not, John Roberts made the call that the plane of the goal line was broken, using the “it’s a tax” reasoning brought up at a late date and contrary to the bulk of the legislative history of the bill. However, there was arguably a plausible connection to the powers enumerated in the Constitution there, and the Chief Justice chose to construe the statute accordingly – though I believe the dissenters made the better case.

2) Even if the law is expansive, the ruling itself is incredibly narrow. The Commerce Clause and Necessary and Proper Clause have both been explicitly limited by the Chief Justice and the four conservative justices. We will thank him and praise him for years to come, even if we don’t like the portion of the holding that he reached with the liberal four on the mandate/penalty being a tax.

3) A series of recent rulings show that this court is anything but a runaway activist court. Look at the final week of the term. The Arizona immigration law. The ruling on juvenile sentencing. And yes, the ObamaCare decision. Each of these decisions was within the bounds of prior precedent, but also narrowed the holding from what the most liberal outcome could have been. Roberts was central to these rulings – as well as to the reaffirmation of Citizens United in a per curiam opinion. Liberals love unpredictable seismic shifts in Constitutional law at the behest of unelected judges, but we conservatives should not seek to emulate them.

4) We remain a nation of laws made by the people’s elected representatives. I’ve really struggled with this one. On the one hand, I would have been gratified to see ObamaCare struck down by the mighty sword of the judiciary, as I believed that the constitutional arguments presented in its favor were insufficient. But remember—these judges are unelected and are charged with the task of interpreting the law and applying it to the facts of the case before them. It is the task of the people’s elected representatives, with the involvement of the elected executive, to make the law. It is the responsibility of the people to choose those elected officials wisely and to hold them accountable – and that responsibility cannot be delegated to the judiciary. The Chief Justice made that point clearly yesterday – early in his written opinion, but at the end of his spoken remarks.

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

I applaud the Chief Justice for making that point. We need to remember that important principle in the future, and quit relying on courts to protect us from our bad behavior at the ballot box. The American people screwed up in 2006 and 2008 by electing liberal extremists from the Democrat Party to high office. It is up to the American people to correct that error in 2012, having made a start at doing so in 2010 in response to the foisting of ObamaCare on the nation over our vociferous objections.

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