There are several fascinating and provocative pieces today—among them one by Sean Trende, one by Jay Cost, and one by COMMENTARY contributor Adam J. White—that argue John Roberts’s peculiar opinion in the Obamacare case yesterday is a Machiavellian masterstroke. It is, they say, comparable to the ju-jitsu practiced by the first chief justice, John Marshall, in ruling for Thomas Jefferson’s administration even as he single-handedly raised the Supreme Court to a co-equal check-and-balance on the executive branch, something Jefferson detested, in the 1803 Marbury v. Madison decision.
Roberts himself probably had Marshall and Marbury in mind as he crafted an opinion that seeks to limit federal power even as it allows its expansion in this single case. Which does not change the fact that Roberts’s reasoning is intellectually, ideologically, and legally perverse—willfully so, in fact. And no matter how you slice it, such perversity is not good argument, good intellection, or good leadership by the nation’s most powerful thinker.
It is not just the contradiction I point out in the New York Post today—saying the mandate is not a tax on page 15 and saying it is on page 35. That illogic runs in parallel with the simultaneous acceptance of an enormous increase in federal power while simultaneously evoking the need to limit it. It is all well and good to assert both conclusions, but they cannot be reconciled by ignoring the need to reconcile them! Roberts is far too intelligent not to know this. And yet, in the most important opinion of his career thus far, he signed his name to something that, were he a professor grading a paper in which such an argument was advanced, he would be compelled to circle three times in red with arrows pointing back and forth.
This is why my friend David Brooks’s description of the Roberts decision as “Burkean” does an injustice to Burke, perhaps the greatest polemicist in the English language, who would never have engaged in such slipshod reasoning.
A writer’s first responsibility, pace the Straussians, is unity—clarity in prose that reveals the clarity of argument. I know that a court decision is not an article but a negotiated document; even so, these decisions are intended to govern the thoughts of others, and when they indulge in casuistry, they legitimate casuistry in other courts. Roberts may want to limit federal power, but in rewriting a law’s language for his own purposes, he is effectively expanding court power in a profoundly damaging way.
If it is indeed the case that Roberts switched sides because he was worried about the political legitimacy of the Supreme Court, he made a devil’s bargain. It is meretricious decisions like these that damage its legitimacy far more than any immediate political controversy.
"If it is indeed the case that Roberts switched sides because he was worried about the political legitimacy of the Supreme Court, he made a devil’s bargain." n nThat is what I think he did. And in doing so he helped Obama "fundamentally change" America. But thankfully the voters can have the final word.
But will the voters have the final word? Can this argument be boiled down so that John Bloke in Chester, Mass. or in Darlington in the Carolinas can discern why he should even be concerned about this highfaluting verbiage. The novelty of Justice Roberts' decision does not resonate with the guys going on 99 months of welfare, oops, unemployment insurance. How does it apply to your mechanic or the unemployed? n nWe are screwed!
I see the denial phase has begun.
Roberts created a new foundation for Leviathan just when the old one (Commerce Clause/Wickard v. Filburn) had finally been proved bogus. Roberts has shored up Leviathan for another 50 years. That is his true legacy.
It's astonishing that the right considers a failure to provide healthcare to millions a success. At long last, have they no sense of decency?
What Obama did was drastically change the health care for system for the majority of the people who where fine with what they had to provde for the 10% of the people who had none. What should have been done was work out a plan for the people who had no insurance and get them something that was affordable. It's like getting a ding in your car door and instead of getting the door fixed you take the whole body of the car off the frame and start from scratch. None of the finality of this kicks in until 2014 so Obama can be re-elected before anyone knows how much damage this is going to do to our country. Why did no one in the press ever ask the Democrats if the plan was so good why did Congress exempt themselves from it?
Podhoretz wrote that John Marshall was "the first chief justice." Let the record show that John Marshall was the nominated by John Adams, and was the fourth Chief Justice of the United States Supreme Court.. n nLet's not forget that Mr Podhoretz recently wrote in The New York Post that Congress, not the Senate has the advise and consent authority over the President's nominations, and last November he wrote that the Academy of Motion Picture Arts and Sciences gives away DeMilles on Oscar night.
So we're supposed to be grateful for this? We're supposed to see the "genius" of his opinion? Funny, why don't I feel better? (He could have/should have just struck it down as unconstitutional, stating that it was a massive over reach by Congress).
I am furious at Roberts and no amount of spinning what he did is going to change my mind.
There are many good points in this piece. I do not agree, however, that the decision is "meretricious" as much as I despise Obamacare and Obama. Let me explain. n nThe default position of the Court must be to uphold statutes passed by a legislative majority, state or federal. The striking down of a statute must be the exception, not the rule. The Court thus looks for ways to uphold rather than strike down statutes. n nI strongly suspect that Roberts would have voted to strike the statute down if Kennedy went the other way. Getting rid of Obamacare is a job for the electorate, not the Court. We need to find a way to talk beyond the echo chamber of readers who largely agree with these views. We need to convince others.
when a little kid will not share his cookies with his brother, we call him greedy. when that little brat grows up, and has good healthcare, but does not want others to have it as well, we call him a conservative. nWhat is wrong with u conservatives? Greed? Schadenfreude? u do not want to pay workers a living wage? do u ENJOY it when kids go hungry? answer: clearly yes. nAnyway, Kommentary is getting absurdly irrelevant. Like the writers on Rupert's Post, u guys get together after work, and laugh about who can be sillier conservative than the others. nSpeaking of transparency, who is the Sugar Daddy who supports this pitiful magazine?
What is "wrong" with us conservatives is the simple recognition that Obamacare does not promise "good" health care for some, but "bad" health care for everyone. Liberals hide their simple lust for power under a false mask of compassion. It is tiresome.
I have been leaving this around at various places. So John – you get one too. n nThe central issue of our times: n nThe power to tax is the power to enslave. n nFor what are you willing to be a slave? n nFor what are you willing to enslave others? n nPass it on. Claim it as your own.
Before I claim it as my own, I want to see your answers. Are you willing to enslave others to pave the roads, for example? To have firefighters and police? To maintain a standing army? What do you consider important enough to tax for, given the melodramatic importance you have given taxation in your own mind?
It is about time Commentary comes out clean on who finances the magazine. So much hatred of the Obama administration. Enjoy your tea party.
Ginsberg is unfortunately exactly right: Roberts' comments on the Commerce Clause have nothing to do with the case at hand, and will have no power of precedent. n nThere are two kinds of bad constitutional decisions: those that simply bend and stretch the constitution, sometimes egregiously, and those that go completely off the map. I only know of two off-the-map decisions: Justice Douglas's "penumbras of emanations" discovery of the right to privacy (Griswald), and Justice Roberts perception of a tax where the law and the legislative history emphatically said there was none. This establishes a precedent for arrant New-Speak. n
Gim GL. "Court must be to uphold statuses…"- the weakness of the conservative tradition,that is allways defend not attack anithing. I hope American conservatives will be the attackers and the winners