In my last post I dealt with the false proclamations from the Left that the opinion of Chief Justice Roberts in the health care case was not a political decision. In this post, I want to discuss the claim from the Right that the Roberts decision somehow was a conservative victory. There have been two narratives put forward for this latter claim–stories that, on reflection, sound more like fairy tales.
The first narrative focuses on the initial portion of C.J. Roberts’s opinion in which he concluded that the individual mandate was not lawful under the Commerce Clause. Roberts used strong language in this portion of the opinion to make it clear that he did not believe the Commerce Clause authorized Congress to force people to enter the marketplace to purchase commodities. This portion of his opinion mirrored language from the joint dissent of Justices Scalia, Kennedy, Thomas, and Alito, meaning that a majority of the Court voted to curtail the Commerce Clause power.
The Commerce Clause ruling has prompted some conservative constitutional law experts, Georgetown law professor Randy Barnett being the most prominent, to claim that “we won” in the health care case. The premise is that the victory for the Obama administration in upholding the health care law did not come at the expense of vastly expanding Congress’s power under the Constitution. Barnett goes so far as to say that “[t]hose who value our republican system of limited federal powers should put their disappointment with the decision aside and breathe a sigh of relief about the bullet we dodged and the good legal precedent we set.” Barnett downplays Roberts’s ruling on the taxing power with the contention that “the worst that can happen is a fine” rather than imprisonment, and passing tax legislation is much tougher than relying on the Commerce Clause.
Dovetailing with this argument is the claim by some on the right, most notably Charles Krauthhammer, that C.J. Roberts pulled off a deft maneuver by limiting Congress’s power in the future by allowing the health care law to survive. Krauthammer posits that Roberts did this because he views himself as carrying two responsibilities: his responsibility as a judge and his responsibility as Chief Justice of the High Court. Some commentators have gone so far as to argue that Roberts carried out his duty as Chief Justice in upholding the law because he is charged with being a steward of the Court’s legacy. They point to the fact that there was another Chief Justice who did the same: the great Chief Justice John Marshall. In Marbury v. Madison, Marshall ruled in favor of the Jefferson administration in terms of the appointment power, but in the course of doing so he ensconced the power of judicial review in the Supreme Court. Although there have been some critiques of the legal reasoning in Marbury over the years, nearly everyone acknowledges the deftness of the opinion in handing Jefferson (a harsh critic of Marshall) an immediate victory while at the same time enhancing the future power of the Court.
Some conservatives are claiming that C.J. Roberts has done the same thing. He handed the Obama administration an immediate victory by upholding the health care act, but at the same time he curtailed the power of Congress in the future by reigning in the liberal use of the Commerce Clause to justify all kinds of legislation.
There are several obvious stark differences, however, that make this parallel ring hollow. First, the victory Marshall gave to the Jefferson administration was incredibly small, affecting only a tiny percentage of presidential appointees; the victory Roberts gave to the Obama administration constituted the largest expansion of federal power since the Great Society, and it affects every American.
Second, although some legal commentators in high and dry law review articles have critiqued C.J. Marshall’s legal reasoning in Marbury, it had a plausible and logical flow to it. This is part of the reason Marbury has stood the test of time. On the other hand, C.J. Roberts’s reasons for why the health care law is constitutional under the taxing power have been almost universally panned; nearly everyone acknowledges that Roberts rewrote the statute to make it fit within his strained constitutional framework. This undermines rather than strengthens any claim to the shrewdness of Roberts’s opinion.
Third, no one denies the enduring importance of the Marbury decision in establishing the fledgling institution of the Supreme Court. The effect of the Roberts Commerce Clause opinion will take much more time determine and there is every reason to doubt its importance. The Court has taken a strong stance against Congress’s ever expanding use of the Commerce Clause before in United States v. Lopez in 1995, yet the effect that decision has had on future Supreme Court rulings has been muted at best. Moreover, the limitation on the Commerce Clause could easily be overshadowed by the other theme in the Roberts opinion: rewriting legislation to sustain its constitutionality in the name of deference to the political branches. If the latter is the lesson that is ultimately culled from the health care decision, then Roberts’s words concerning the Commerce Clause will be meaningless.
Finally, Marshall presided over an institution that was new in several respects: an independent national court had never been implemented before and no one was sure of its powers and parameters. That Marshall would act as its shepherd is understandable given the historical context. We are now over 200 years removed from the Marbury decision. It is safe to say that the Court has established its power and place in our system of government. The Court does not need a steward; it needs responsible judges who are beholden to interpreting the law and the Constitution as they are plainly written and understood.
In fairness, C.J. Roberts very well may turn out to be such a judge, but he was not in this crucial instance. For conservatives to compare this to Marbury demonstrates an appalling degree of legal and historical ignorance, and hailing the decision as some sort of ingenious conservative victory borders on delusion.
The second conservative claim about the Roberts opinion is more pernicious because it appeals to a prevalent conservative credo: judicial restraint. This narrative contends that C.J. Roberts practiced the first principle of conservative judging by deferring to the judgment of the elected branches of government on a major piece of legislation. Commentators from both the Left and the Right have related this tale, and to be fair they did not dream it up out of whole cloth. Chief Justice Roberts himself laid the groundwork for this contention in his opinion where he said:
“Our permissive reading of [Congress’s] powers is explained inpart by a general reticence to invalidate the acts of theNation’s elected leaders. … Members of this Court are vested with the authority tointerpret the law; we possess neither the expertise northe 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 oftheir political choices.”
That sounds nice, doesn’t it? After all, this is a democratic republic. The people are supposed to decide their fate and their elected representatives carry out their political will. The High Court should be extremely reluctant to enter the political fray, impose its will, and effectively place political disputes beyond debate by invoking the Constitution. And haven’t conservatives been bemoaning for years the “activist” nature of the federal courts and how they are all too willing to read their own preferences into the law as constitutional requirements? Let Congress and the President do what they may, this line goes, but the last thing we want is a despotic unelected branch of government telling us what is good for us.
The problem with this narrative is that conservatives stand for fidelity to the original constitution, not simply less judicial intervention in the political system. The reason conservatives have been bemoaning the “activist” courts is because they actually have been activist as that term is properly understood. Judicial activism involves rulings by judges that expand the law to say that which it does not actually mean. (Of course, it is impossible to get liberals to agree to such a definition because they deny there is such a thing as fixed meaning, but that problem must be left for another post). Activism is not equivalent to striking down statutes because they are unconstitutional; that is simply exercising the power of judicial review.
The Founders made it abundantly clear that judicial review was part of the framework of check and balances built into the Constitution. In Federalist No. 78, Alexander Hamilton said:
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”
It’s pretty difficult to be more clear than that. In fact, Chief Justice Marshall borrowed Hamilton’s reasoning in writing Marbury. James Wilson, who later would become one of the first U.S. Supreme Court justices, similarly explained in his remarks to the Pennsylvania Ratifying Convention in 1787:
“I had occasion, on a former day, to state that the power of the Constitution was paramount to the power of the legislature acting under that Constitution; for it is possible that the legislature, when acting in that capacity, may transgress the bounds assigned to it, and an act may pass, in the usual mode, notwithstanding that transgression; but when it comes to be discussed before the judges–when they consider its principles, and find it to be incompatible with the superior power of the Constitution–it is their duty to pronounce it void; and judges independent, and not obliged to look to every session for a continuance of their salaries, will behave with intrepidity, and refuse to the act the sanction of judicial authority.”
Asking the courts to strike down unconstitutional laws is conservative because it protects the people from overreaching government. So-called judicial restraint is not a conservative virtue if it is practiced in the name of upholding a law that violates the rights of the people. As C.J. Roberts himself stated in his Citizens United v. FEC concurrence, “there is a difference between judicial restraint and judicial abdication.”
The irony of this narrative is how wide of the mark lauding C.J. Roberts for his judicial restraint actually is because, in fact, he was an activist in upholding Obamacare. He rewrote the individual mandate to read the way he desired in order to preserve its constitutionality. That is contrary to the Constitution’s design for judicial review and therefore not in keeping with conservative principles.
Sometimes a defeat is just that and the best thing to do is accept it rather than attempting to salvage an empty victory. This is one of those times. We can be heartened that four justices saw Obamacare for what it is: an offense to individual freedom and limited government. But a majority of them did not see it, or worse, did not care. Hopefully the mistake will be corrected at the ballot box and the harm will be short-lived. But even if that happens, there is no getting around the fact that this was a very poor decision by the Chief Justice and the four government-rubber-stamp liberal justices of the United States Supreme Court.
Chain of Liberty 
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