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DECISION 7/7/2012 5:05:15 AM
Conservatives in America are beside themselves (their favorite position) since Chief Justice of the Supreme Court John Roberts sided with the court’s liberal justices and decided the nation’s health care law was, after all, Constitutional. Many who had expected a much different outcome considered this the action of a true turncoat and traitor to the cause.
A legal scholar at the Brookings Institute, Ben Wittes, suggested we be very careful in evaluating the Chief Justice on this case.
“Roberts is, to be sure,” writes Wittes, “no shrinking violet about ideologically divided opinions when, in his view, the law compels them, but he apparently has a more flexible view than do his conservative colleagues concerning the difference for constitutional purposes between a penalty and a tax. In other words, don’t be too surprised if Roberts [in his] next term looks like a conservative again. He actually did not stray very far from where the other four conservatives ended up in this case — just over a consequential line.”
John Roberts himself defended his actions when he wrote in his opinion, “We do not consider whether the act embodies sound politics. That judgment is entrusted to the nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.” Yes, that verbatim is what he wrote, and it is not in the least ambiguous.
It was pointed out that Roberts, at 57, could, in all likelihood, serve as Chief Justice another twenty-five years, and his value as a justice is best determined by history after decades on the bench, not the knee jerk reactions by a bunch of political bigots.
Erwin Chemerinsky, a liberal scholar who is dean of the law school at the University of California at Irvine, stated flatly that the era of the Roberts’ Court has begun. “He authored the opinion in the most important case in his seven years on the court, and did so against what was expected. [Supporting President Obama’s health care law was not much of a surprise. It was no longer Anthony Kennedy’s court, after all.] This was the year of the Roberts’ court,” wrote Chemerinsky.
In any event, the deed is done. This innovation, a long time in coming, was declared Constitutional and has become the law of the land. After decades, ever since FDR’s time, we finally have a national health care agenda with some teeth in it. Perfect? By no means. But a noble start.
Had Roberts done other than what he did, that agenda would have been decimated, which, it seems, is what the dissenting justices wanted. As Chemerinsky wrote, “The individual insurance requirement at the heart of the law could be upheld as a tax — at the same time, I must reject administration arguments that the mandate was justified by the Constitution’s clause giving Congress power over interstate commerce, which has been the authority for most federal programs since the New Deal.” Well said.
Ironically, a few legal scholars have gone so far as to say John Roberts has written what could be defined as a “conservative” opinion with “liberal” overtones. Neal Katyal who, as a former acting solicitor general, argued the administration’s case, said, “The Roberts’ majority opened the door to potentially important changes in the law that could restrict federal power.”
Ilya Somin, a law professor at George Mason University, wrote on his blog that this “gives supporters of limits on federal power some useful ammunition, despite also dealing a painful defeat.” On top of everything else, the Roberts’ decree might refuel the debate and give the GOP fresh gunpowder by labeling it a huge tax increase they would hope to repeal.
Say what? They would have to be elected first, which as I said before, is highly unlikely.
All the happened on Thursday. On Monday of the same week, Roberts and his buddies — including Kennedy (but not Elena Kagan) — decided the Arizona immigration case. It permitted the gendarmes to ask to see papers of anyone they stopped for any reason whatever, and if those unfortunate miscreants were not legal citizens, look out!
Why did not John Roberts simply side with his conservative brothers? Because that would have resulted in a 4-4 tie (without Kagan), and as the C.J. opined, “It would have all been a waste of time.” Apparently, it is tough to get anything done just days before the Court goes on vacation.
There were other elements of the session that bear scrutiny. For example, sentences of life without parole for persons under 18. Roberts wrote a bitter dissent from Kagan’s majority opinion.
Roberts and the other conservatives said No Way to campaign spending limits, but agreed to reopen the 24-month old Citizens United law, which still stands as probably the most unsatisfied legislation of Roberts’ tenure.
The list goes on and on. Montana’s corporate election spending fiasco. The Voting Rights Act. Texas’s Congressional Redistricting Maps. The University of Texas’ affirmative action program. Gay marriage. And so on.
Anyway, did you actually read (or at least, hear) any of Chief Justice John Roberts’ written opinion? If not, dwell again on the following: “We do not consider whether the act embodies sound policies. That judgment is entrusted to the nation’s leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”
This, to me, does not sound like one who can be compared to a guy who is hired to call balls and strikes. It sounds more like a sort of backhanded compliment when the final score dissatisfies one or both teams.
