Thursday, June 28, 2012

Chief Justice Roberts and the Constitution

People can't help talking about the short term political implications of the Supreme Court decision upholding the Affordable Care Act, and they can't help talking about the merits (or lack of merits) of the Act itself. But neither of those considerations should have played any role in what the Supreme Court had to decide. It is to the Chief Justice's credit that he managed to rise above consideration of the political implications of his decision, and also put aside his personal views of the advisability of this law.

It could be that the most important part of Justice Roberts's opinion is the seven page introduction (I say that perhaps because I haven't had time to digest the rest). But the introduction reminds us that the courts have a limited but important responsibility:
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.
(slip opinion at p. 6) Before getting to that, and perhaps even more importantly, Justice Roberts reminds us that ours is a government of limited powers. This is what makes our country almost unique in the world. Most governments, even most democratic governments, start from the proposition that the sovereign (in most cases that is or used to be the king) has unlimited powers. In a parliamentary democracy, the sovereign might delegate those powers to a legislature, but they are still essentially unlimited, and they are still powers that are derived from the top down: from God, to the King and then to the legislature. Our government is premised on the opposite principle. Our government started by overthrowing the king, and declaring that the people are sovereign. That is why the Constitution starts with the words, "We the People." All power is retained by the people, or by their state governments, and the federal government possesses only the powers that we the people have expressly granted to it in the Constitution. This is our founding principle. It might be the only principle that we can all agree on.

Yet we never seem to agree on that principle in practice, because our views regarding the scope of the federal government's powers, change depending on what the government wants to do. Whichever party (and parties, remember are a concept that are foreign to our Constitution, and don't fit comfortably within our founding principles) obtains power wants the government to have all the power it needs to do whatever it is that that party supports. The opposition, on the other hand, the party out of power, tends to think of everything the government does that the opposition doesn't like, as beyond its power. This is why we are constantly arguing about the Constitution, and why the Supreme Court plays such an important role in our system of government, unlike many other governments. This is why everything new that the federal government tries to do, whether it is levying an income tax, or building roads, or monitoring our private lives, or involving itself in schools or social welfare programs, presents such a struggle. And this is why Chief Justice Roberts has to spend the first few pages of the Court's decision giving us a history and civics lesson before he can decide the question.

Chief Justice Roberts deserves enormous praise for his courageous decision today. Upholding the Affordable Care Act probably violates his personal policy preferences, and tests the limits of his personal views of the scope of the federal government's power to to enact such a law. Moreover, the Chief Justice had to vote on the signature legislative achievement of a president from the opposite party, a president who even voted as a senator against Chief Justice Roberts's own confirmation! (Now there's a vote President Obama would probably like to take back today.) Despite the intensity of Justice Roberts's personal feelings, and his knowledge that henceforth and to the end of his days, he will probably be vilified and denounced as a traitor by the right, the Chief Justice was able to put those feelings aside and uphold our founding principles. The Chief Justice proved that the Court is not a purely partisan institution that simply approves or disapproves legislation based on its personal policy preferences, and he thereby upheld the integrity and dignity of the Court and the Constitution. Hail to the chief!


  1. Roberts gave a brilliant opinion. He made it clear that commerce clause does not authorize Congress to compel you to act but it does authorize Congress to restrain your behavior.

    He made it clear that the constitution gives Congress the power to decide how it wants to tax and spend. As well, Congress will suffer political consequences if the people find the tax too burdensome or the expense too burdensome.

    By calling the mandate portion of the ACA a tax he allows for relatively swift reprisal to voters. Since the bill was pass under reconciliation with only 51 votes needed it can be repealed as a tax under reconciliation with only 51 votes.

    No matter if the left or right or anyone in between is more or less happy about the details of the ACA, Robert’s opinion is hopeful in that it will support and guide future justices’ opinions to restrain future Congress’ from interfering with private persons.

    As well, a lot will be said in coming days and weeks about the SCOTUS, by a vote of 7-2, giving power back to the states.

  2. We can agree on our admiration for Chief Justice Roberts without necessarily agreeing on all the specifics. My guess is that it will be decades before we can assess the impact of the Court's interpretation of the commerce clause. It might mean a lot, or it might not mean much at all. Too soon to tell. The spending power limitation could be significant as well. And it was interesting that Kagan and Breyer went along with that. There is already speculation that they made a deal to get Roberts to go along with the liberals on the constitutionality of the mandate.

    The Senate's version of the health care bill was passed by the Senate with 60 votes, after the House had passed a different bill. Then Scott Brown was elected, which forced the House to pass the Senate version verbatim to avoid a second vote in the Senate for which they could no longer get 60 votes. Then there was a second clean-up bill which was passed through a reconciliation process. That's my recollection anyway, and I could have some details wrong since I don't hold myself out as an expert on the rules of Congress.

  3. Here is what I found Joe:

    “The Health Care and Education Reconciliation Act of 2010 (H.R. 4872) is a reconciliation bill passed by the 111th United States Congress to make changes to the Patient Protection and Affordable Care Act. It was signed into law by President Barack Obama on March 30, 2010.”

  4. Roberts looks like he really though this through with an eye on the long term.

    He got four liberal justices to defend the commerce clause. By doing this he will guide future justices’ opinions and restrain future Congress’ from interfering with private persons. I think that historical significance was most important to him.

    As well, by making the mandate a tax he has thrown the issue back to the people. There is more to the courts decision than first meets the eye.

  5. The reconciliation bill you are talking about is what I was referring to as a "clean-up" bill. The main bill passed by the normal process. But I still don't know whether Congress would be able to repeal the Act without a cloture vote in the Senate. Even if they could, though, it's a moot point if Obama is re-elected, because Congress would not be able to override a veto. So it all comes down to the presidential election.

    You are undoubtedly right that Roberts thinks things through and is thinking long term. And one thing he most likely was thinking was that if the people want to overturn this Act, it's easy enough for them to do it by voting out Obama and voting in a more Republican Congress. In the meantime, he gets as conservative a ruling as he can for the long term, he increases respect for the Supreme Court, and he leaves it up to the voters, who should be the ones to decide what they want to do to fix our health care system, to fix it. Not a bad day's work.

  6. << And it was interesting that Kagan and Breyer went along with that. There is already speculation that they made a deal to get Roberts to go along with the liberals on the constitutionality of the mandate. >>

    In your experience, will we ever know or do these type details go to the grave with them?

  7. The justices are pretty good at keeping secrets, but the clerks sometimes talk eventually, and there have been some books using that kind of information to tell what happened behind the scenes of some famous cases. Also, I once attended a seminar with Harry Blackmun and he gave us a lot of background information on how Roe v. Wade was decided. Other justices have provided details like that on other cases.

    I actually think it would be good for the sake of history if we knew more about the secret memos and what happens at the conferences and the drafts of opinions and how votes changed and all kinds of stuff like that. At least for the important cases. We probably shouldn't have access to that stuff now, but 50 years from now, why not? But the justices for the most part think that everything that is important is disclosed in their opinions, and that the public has no right to know about their drafts and their behind the scenes decision-making process.

  8. Thanks Joe.

    Having you given any thought to that idea that Roberts was acting as an activist judge when calling the mandate a tax when that was not how it was written or sold? Possibly re-writing the bill for President Obama.

  9. I know they did not want to call it a tax when they wrote the bill, though I'm not exactly sure why. In hindsight, maybe it would have been better to call it a tax, since people reacted so negatively to the idea of a mandate. In fact, there is no real mandate, since you are not forced to buy insurance. You just have to pay a tax or penalty or whatever you want to call it if you choose to go without insurance.

    When the government argued the constitutionality of the Act in Court, they mainly relied on the Commerce Clause, and secondarily I think on the Necessary and Proper Clause. But thirdly the government did argue that the mandate could be upheld under the taxing power. So Roberts was not really re-writing the act, he just rejected the government's first argument, and accepted one of their fallback arguments. Appellate courts do that kind of thing all the time.

  10. Thanks for your inight today, Joe!