The Wisdom of SCOTUS Chief Justice John Roberts

JohnRobertsby Cato   11/20/14
This post gets to the core of the ObamaCare subsidy question currently before the SCOTUS.  I wrote several times in the first SCOTUS go-round on the mandate about Roberts’ decision, fascinated by what seemed to me then and what seems to me even more now the brilliance of his principle not to ”protect the people from the consequences of their political choices”.

Had Roberts ruled otherwise ObamaCare would have been stalled, yes.  But then the American electorate would never have “seen what’s in it”, in the immortal words of Nancy Pelosi, The Dems would have claimed the law was struck down on a technicality … which would have been true … and the illusion of the efficacy of central planning for the healthcare industry would never have been destroyed.  Nothing, so goes an old saw, kills a bad law faster than fully enforcing it.  ObamaCare is a textbook example of this.

Americans are not policy wonks.  We are tinkerers and inventors.  We learn by doing; are educated by experience.  So we have done and so we have been educated by the experience of ObamaCare … and all the better are we for it.  Roberts was castigated by short-sighted conservatives when that first ruling came down.  As noted in this post below on the current issue before SCOTUS on subsidies, many ideologically-blinded conservatives still haven’t caught up with reality; still strafe Roberts at every opportunity.

If Roberts adheres to his guiding principle so succinctly stated in that quote above he will rule to sustain the letter of the ACA; he will enforce the law literally to the letter, thus denying the federal government the executive and regulatory authority to arbitrarily reverse the subsidy clause as written by Congress.  Specifically and technically, he will refuse the IRS the self-granted privilege of accepting subsidies on 1040s from taxpayers in the 36 states where the law does not authorize their acceptance, thereby once again exposing the people to the consequences of their political choices.

Scanlon, below, ties himself in a rhetorical knot trying to avoid the obviousness of my argument.  I find his thesis tortured and weak; a foregone conclusion searching for a rationale and devoid of experiential validity.

This ruling will be 5-4 one way or the other, depending on which way Kennedy votes.  Bader-Ginsburg, Kagan, Breyer, and Sotomayor will most likely, and happily, toss written law overboard once again in favor of ‘intensions’.  Roberts, Alito, Scalia and Thomas will vote to uphold the law precisely as written.  The betting is that Kennedy, who has been noticeably vexed by bureaucratic over-reach in other decisions, goes with the conservatives.  There is, however, a small chance Breyer can’t bring himself to empower the bureaucracy and the Oval Office with the ability to rewrite laws by edict, seeing this as beyond reasonable ‘regulatory discretion’.  So 6-3 isn’t impossible.  But we shall see.

Also see: Roberts, Obamacare, and Consequences by Joel Scanlon


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27 Responses to The Wisdom of SCOTUS Chief Justice John Roberts

  1. Brad Nelson Brad Nelson says:

    Thanks, Cato. I noted that a Gene Schwimmer (never heard of him) had a concurring opinion on this at American Thinker the other day: The Vindication of John Roberts.

    I believe the deeper issue — tax or no tax — was the ability of the government to require one to engage in commerce. There were so many bad things in this bill, including the way it was passed, that the “tax” aspect of it becomes simply one of many issues.

    What we do know for sure is that John Roberts would have done the American people a great favor by striking down Obamacare. And the rationale for doing so was well within the rule-of-law.

    I’m all for trying to polish a turd if we can, but I don’t think it’s easy to polish the turd of John Robert’s decision, particularly under the circumstances of his rather late change of opinion. In fact, the dissenting side used Roberts’ opinion for striking down the law in their official dissenting opinion. Some have said this was done very self-consciously to show the vacuity of Robert’s eventual decision to uphold Obamacare on a rather forced technicality (or construction).

    And it’s not the job of the Supreme Court to protect us from our political decisions, but it is there to protect us from illegal or extra-Constitutional stuff. The Obamacare monstrosity of legislation easily fits into this.

    Governance via non-governance (where it’s assumed that everything will just work out alright) tends to be a libertarian conceit.

  2. Timothy Lane says:

    The acceptance of Obamacare as constitutional was a dubious decision, but it’s true that the Court could use a little more modesty. If indeed Roberts votes to confirm the law as written instead of allowing arbitrary rule by the Fascist Messiah and his minions in the IRS and Congress (aided and abetted by the synoptic media), then one can indeed make an argument in his favor.

    I also think your analysis of the 4 liberals is reasonable. Breyer might choose to follow the Constitution over liberal ideology; the 3 weird sisters almost certainly will never consider such fidelity to their duties. Sic semper tyrannis.

  3. Kung Fu Zu Kung Fu Zu says:

    I hope Cato’s analysis is correct, but in this case I can’t help thinking he is like the little boy who got horse droppings instead of candy in his Christmas stocking and said, “oh look, Santa left me a pony, but it got away.”

    • Brad Nelson Brad Nelson says:

      LOL. That’s sort of my view.

      Obamacare had to be ripped out then and there, by the roots. It wasn’t. We’ll pay a huge societal price for both the political hooliganism of the Left and the political indiscretions of the Supreme Court Justices.

      • Timothy Lane says:

        Yes, even if one agrees ultimately with Cato’s point, the price will be extremely high for millions of people — in some cases, it will probably be fatal. Every one of them will be a victim of the crimes of the Democratic Party — which Roberts abetted.

  4. NAHALKIDES NAHALKIDES says:

    I think I missed your earlier posts on this subject, Cato, but I’m afraid I have to disagree in the strongest possible terms: Roberts’ determination “not to protect the people from the consequences of their political choices” is an incredible dereliction of duty and an explicit denial of the entire principle of judicial review. Let’s see what another Chief Justice, John Marshall, had to say about the difference between governments that are limited and governments that are unlimited in Marbury v. Madison:

    The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it… Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.”

    This is absolutely correct legal theory, although I know some Conservatives don’t like judicial review because the courts have occasionally abused the power (the obvious example being Roe v. Wade). But that a power, especially a power essential to the system of checks and balances, may be abused, is not sufficient reason to deny the power altogether. Consider any case in which a legislature has exceeded its authority – how do a free people protect themselves? The consequence of your ideas is that they must (1) assemble a voting majority that agrees with them, and (2) hope that their representatives abide by their wishes.

    Now the two things wrong with this are that (1) Our fundamental liberties are too important to be left to the arbitrary whim of any transient majority, and (2) Elected representatives do not always obey the will of their constituents. Recall that Obamacare has never enjoyed the support of a majority of this country’s citizens, thus a minority was able to impose its will on the majority, and in a way which reduced us from independent citizens to mere subjects of politicians great and small. Indeed, this fact alone completely annihilates Roberts’ rationale, since the people never wanted Obamacare in the first place!

    Nonetheless, I want to make it clear that the first objection is the more important of the two. Suppose that the majority desires tyranny and votes to establish one: let’s say that the Democrats went ahead and attempted to abrogate the First Amendment by ordinary statute, making all criticism of the government illegal, and a small majority of the public agrees with them. The government having decided to first round up the biggest fish, Rush Limbaugh, Sean Hannity, Brad Nelson, and myself (who all refused to shut up) are now in Federal prison (Jonah Goldberg was spared the dragnet). Let us apply the principle you and Roberts embrace: “We mustn’t spare the people the consequences of their choices. They can change the law any time they wish. Until then, those dissenters will simply have to rot in jail.”

    Where does that leave men who wish to remain free? Without legal recourse, they would have to resort to force of arms to compel the government to obey certain limits – indeed, without a written Constitution that the courts will enforce, the government could not be compelled to obey any limits at all without resorting to armed force. It was to forestall such necessity that our Constitution was written. Without a Constitution that was binding on the legislature, no minority could ever protect itself since by definition it did not have the votes to do so.

    What you and Roberts are extolling is an unlimited democracy, in which the majority may do whatever it pleases and the minority must comply with their wishes even when being stripped of liberty, property, or in the most extreme situation, their very lives. It is the rule by brute force, the strong subjugating the weak, in a gussied-up form that disguises its true and ugly nature, making it perhaps even more detestable than a state of anarchy in which five men beat two men up and rob them of their possessions just because they can. Is that really what you wish to advocate?

    We live in an age in which the “Emperor” Obama seems determined to push Presidential authority far beyond that which we the people ever agreed to grant him. But unbridled legislative authority is no less dangerous to liberty, and if Congress can pass the ACA without legal impediment, then Congress sits upon the throne. Without the courts to restrain it, our options to maintain our freedom without resorting to the final solution – another revolution – are terribly limited. We need not fewer laws being struck down by the courts, but many more, to remind the majority that we the minority are entitled to exact some conditions from them in return for living in the same society.

    • Brad Nelson Brad Nelson says:

      Extremely well said, Nik.

    • Timothy Lane says:

      Oh, how cruel, suggesting that Jonah Goldberg would escape the dragnet. Do you have any NRO types who would be arrested? (Mark Steyn would be, but he’s no longer there.) And how could you exclude some of the rest of us here at stubbornthings? You can bet the NSA already has me on their list.

      • NAHALKIDES NAHALKIDES says:

        Yeah, I thought about that, Tim. In truth, some of the NR staff may well be on the Democratic hit list, and I thought about including you and Kung Fu Zu but wasn’t sure how you’d feel about it. You are pretty well known from commentaries here and NRO, and for all I know, Obama’s NSA has been monitoring the content of FOSFAX as well!

      • Rosalys says:

        To put a new slant on an old evangelical question, “If you were arrested for the crime of promoting liberty, would there be enough evidence to convict you?”

        I suspect that for some of us older folks who perhaps don’t have much of an audience, we will be effectively dealt with via Obamacare!

        • Timothy Lane says:

          In an article on the early Obamacare planning in FOSFAX, I gave that as exactly why I opposed it: given my age and political views, I would somehow never qualify for the sort of care it was supposed to pay for.

    • Rosalys says:

      I agree whole heartedly!

      Where does that leave men who wish to remain free? Without legal recourse, they would have to resort to force of arms to compel the government to obey certain limits…

      Which is precisely what the second amendment is all about – and why the tyrant class wishes to nullify or at least diminish it in any way they can!

      • NAHALKIDES NAHALKIDES says:

        Yes, Rosalys, the 2nd Amendment is there as a last resort – but note that the framers, by drafting a written Constitution, hoped things wouldn’t reach that point since free men could press their claims against government overreach in court. For example, I consider Obamacare a serious enough intrusion on liberty that I feel outright rebellion to overthrow the law is justified – but I’d much rather have a judiciary that strikes the ACA down as an unconstitutional power-grab by Congress so that I don’t have to resort to force of arms to vindicate my rights.

    • Rosalys says:

      …let’s say that the Democrats went ahead and attempted to abrogate the First Amendment by ordinary statute, making all criticism of the government illegal…

      Didn’t a couple of Dems attempt to do just that a few weeks ago?

      • Timothy Lane says:

        They weren’t banning all criticism. The news media (which they mostly control) would (in theory) still be free, and people would still be free to sound off as long as no one could hear them. (I suspect that the Fascist Messiah would only have applied such strict rules to his enemies, of course.)

      • NAHALKIDES NAHALKIDES says:

        Yes, as a practical matter. Of course they didn’t frame it that way; they pretended it was merely another campaign finance restriction. But when private citizens can’t spend their own money on speech, it’s not a campaign finance law, it’s censorship of the political opposition.

        • Kung Fu Zu Kung Fu Zu says:

          It should also be said that the push for “hate crimes” as a separate category is finally about abridging speech.

          • Timothy Lane says:

            Particularly when, as often happens on college campuses (where liberal control is unchecked for the most part), it involves actual bans on hate speech — which usually turns out to be anything liberals don’t like.

    • Misanthropette says:

      Beautiful, cogent defense of liberty as envisioned in our divided (yes, that is the way it’s supposed to be, Cato!) government.

      Roberts violated every principle of the high court in order to cram down the medicine. First, the job of the judiciary is to interpret the laws, not to teach lessons, not to enforce laws, not to give discretion to any other branch of government. The judiciary is the last defense of the people, it is independent (or supposed to be) meaning, it does not second guess the legislative or executive branch intent; it merely interprets the laws, as written. This court did not have the intellectual or civic wherewithal to read the law in its entirety, which should have precluded any votes on its constitutionality.

      Article I, Section 7 states that all bills for raising revenue shall originate in the House. The ACA did not. Roberts rewrote the law as a tax, which did not originate in the House, to plant a trap door? I wish, rather than believe it so.

      • NAHALKIDES NAHALKIDES says:

        Thank you. As to your question about whether Roberts rewrote the penalty as a tax to lay the grounds for a future challenge on the grounds a revenue bill did not originate in the House, I think the answer is no. For one thing, such a challenge (which is actually taking place, by the way) is on weaker ground than the one based on Congress not having the authority to establish a mandate to purchase insurance (although I think it’s still strong enough to prevail). For another, since the ACA contained a number of new taxes beyond the “penalty-tax,” such a challenge was already feasible although was not raised in the case challenging the individual mandate.

        • Timothy Lane says:

          Someone challenged the 1982 TEFRA bill because it was a revenue bill originating in the Senate. But the challenge failed because the Senate had taken a House bill, removed its entire content, added in the TEFRA bill (or at least the initial version), and passed that. So technically, according to the courts, the bill originated in the House. No doubt some similar sophistry would apply to Harrycare.

          • Misanthropette says:

            So the court has a history of failing to read the substance. That’s precedence for ya!

            • Timothy Lane says:

              Stare decisis and all that. Liberals are eager to rely on that principle — whenever it serves their purposes, of course. And then they insist that conservatives should follow it after the liberals have ignored it in a key decision (like Roe v. Wade or Lawrence v. Texas).

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