Commentary Magazine


Topic: Chief Justice John Roberts

Anger at SCOTUS? Liberals v. Constitution

The rage directed at the U.S. Supreme Court in the last 24 hours is instructive. From the White House to the editorial pages of most of the mainstream media, Democrats and liberals have depicted the court’s ruling in McCutcheon v. Federal Election Commission as a lamentable victory for the wealthy few that contribute to Republican and conservative causes at the expense of democracy. To listen to them, the court’s decision to remove the cap on how much money individuals could give to political parties, PACs, and candidates will create a plutocracy. To them, it seems obvious that the only way to make the system fair is to make it hard for citizens, whether as individuals or as a part of group, to make their voices heard in the public square.

Yet when faced with the ruling majority’s opinion that much of what they seek to achieve with these laws directly contradicts the letter and the spirit of the Constitution, liberals are flummoxed. They say that the justices are either naïve or seeking to promote some nefarious agenda by asking those who defend much of the body of campaign finance legislation to take the basic protections afforded political speech in the Constitution into account. Though the left thinks it is self-evident that campaign contributions are an evil that must be severely restricted if not banned altogether, their problem is that they keep forgetting about the First Amendment and that language about free speech. While we are being told the debate about campaign-finance laws is about the rich versus the “people,” their argument with Chief Justice John Roberts and the four other conservatives who voted with him on McCutcheon is really with the Constitution itself.

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The rage directed at the U.S. Supreme Court in the last 24 hours is instructive. From the White House to the editorial pages of most of the mainstream media, Democrats and liberals have depicted the court’s ruling in McCutcheon v. Federal Election Commission as a lamentable victory for the wealthy few that contribute to Republican and conservative causes at the expense of democracy. To listen to them, the court’s decision to remove the cap on how much money individuals could give to political parties, PACs, and candidates will create a plutocracy. To them, it seems obvious that the only way to make the system fair is to make it hard for citizens, whether as individuals or as a part of group, to make their voices heard in the public square.

Yet when faced with the ruling majority’s opinion that much of what they seek to achieve with these laws directly contradicts the letter and the spirit of the Constitution, liberals are flummoxed. They say that the justices are either naïve or seeking to promote some nefarious agenda by asking those who defend much of the body of campaign finance legislation to take the basic protections afforded political speech in the Constitution into account. Though the left thinks it is self-evident that campaign contributions are an evil that must be severely restricted if not banned altogether, their problem is that they keep forgetting about the First Amendment and that language about free speech. While we are being told the debate about campaign-finance laws is about the rich versus the “people,” their argument with Chief Justice John Roberts and the four other conservatives who voted with him on McCutcheon is really with the Constitution itself.

Of course, it’s not that liberals don’t believe in the Constitution at all. It’s just that they think free speech protections are only somehow relevant to a few specific categories of activity. Liberal jurisprudence has applied First Amendment protections to lots of things that used to be illegal, like flag burning and pornography. They’ve also applied it to activities such as allowing a Nazi march in a heavily Jewish town.

Thankfully, there is also a consensus that the First Amendment clearly applies, as its text indicates, to the right of the press to operate without interference from the government. But, as any media veteran knows, freedom of the press in this country has always meant the right of those who own the press to promulgate whatever views they like. The only way for most of the rest of us to gain some of that same freedom was to pool our money to buy time or space in the media to put forward a different point of view. Though liberal ideologues like Jeffrey Toobin mock the notion that giving money to a campaign is, as Roberts says, “participating in a political debate,” that is exactly what it is. Thus, as Roberts also pointed out in his opinion, the main impact of laws that drastically restrict the ability of individuals to spend money on politics was to disadvantage one group in favor of others.

For liberals, democracy has somehow become dependent on the enforcement of a complex labyrinth of laws first enacted in the wake of the Watergate scandal that have created a bewildering legal landscape for all those who wish to take part in our electoral system. Each new piece of legislation intended to further the principle of good government has created new inequities and anomalies that have further distorted this system to the point where no one but a lawyer who specializes in the field can truly know whether a candidate or campaign has violated them–and even then there is no guarantee that an arbitrary federal prosecution may not ensue. The campaign-finance movement is aimed not so much at the threat from corruption as it is to grant government enormous power over the electoral process. But if the framers of the First Amendment meant anything when they forbade “abridging the freedom of speech,” surely it was to prevent the government from trying to limit political expression.

In his dissent, Justice Stephen Breyer complained that the majority was “eviscerating campaign finance laws.” Though the ruling in McCutcheon was narrow and left standing laws that limit contributions to individual candidates, it may well be that the court will soon take up other related issues as well. But if it does, it will not be because they want to steal from the poor and give to the rich or turn the United States into an oligarchy. It will be because the liberal drive to restrict political speech contravenes basic constitutional principles.

For too long, the courts have let Congress and the growing federal electoral bureaucracy run roughshod over the First Amendment. But contrary to Breyer, “democratic legitimacy” does not rest in allowing the government (which is to say incumbents who always stand to benefit from restrictions that hurt their challengers more than themselves) to distort the electoral process. Democracy means letting everyone speak up, whether we like them or not. It is that prospect that drives liberals crazy. If the Roberts court is bent on preventing them from having their way on campaign finance, the fault lies with not with conservatism or deference to wealth but with the Constitution.

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How the Court Made a Bad Bill Worse

In yesterday’s Wall Street Journal, Georgetown law professor Randy Barnett provided a concise summary of the “saving construction” Chief Justice Roberts used to uphold the Obamacare statute. By changing the requirement to buy insurance into an option to pay a penalty, and by making the Medicaid mandate on the states optional as well, the Chief Justice created a revised law he could then deem constitutional. As Prof. Barnett wrote:

By converting the now infamous “individual mandate” into an “option” to buy insurance or pay the remaining “penalty,” he could then uphold the “penalty” as a tax. Then, by similarly rewriting the Medicare requirement being imposed on the states, he was able to “defer” to Congress and uphold the rest of Obamacare. In short, Justice Roberts rewrote the statute so that he could save it in the name of “judicial restraint.”

So what was saved — in the cause of judicial restraint — was a statute judicially re-written, materially different from the one Congress wrote. No one knows if Congress would have passed the rewritten statute in the first place, had it been presented in the form that emerged from the Chief Justice’s opinion: the number of uninsured people covered, the financial cost of the law, and the likely impact on health care are all different from the law Congress enacted. Moreover, in the process, the Chief Justice endorsed a new shared responsibility payment power for Congress that we may see again in the future.

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In yesterday’s Wall Street Journal, Georgetown law professor Randy Barnett provided a concise summary of the “saving construction” Chief Justice Roberts used to uphold the Obamacare statute. By changing the requirement to buy insurance into an option to pay a penalty, and by making the Medicaid mandate on the states optional as well, the Chief Justice created a revised law he could then deem constitutional. As Prof. Barnett wrote:

By converting the now infamous “individual mandate” into an “option” to buy insurance or pay the remaining “penalty,” he could then uphold the “penalty” as a tax. Then, by similarly rewriting the Medicare requirement being imposed on the states, he was able to “defer” to Congress and uphold the rest of Obamacare. In short, Justice Roberts rewrote the statute so that he could save it in the name of “judicial restraint.”

So what was saved — in the cause of judicial restraint — was a statute judicially re-written, materially different from the one Congress wrote. No one knows if Congress would have passed the rewritten statute in the first place, had it been presented in the form that emerged from the Chief Justice’s opinion: the number of uninsured people covered, the financial cost of the law, and the likely impact on health care are all different from the law Congress enacted. Moreover, in the process, the Chief Justice endorsed a new shared responsibility payment power for Congress that we may see again in the future.

In the current issue of Commentary, Tevi Troy in “The ObamaCare Debacle Deepens” demonstrates that:

Quite simply, the Roberts opinion took a bad bill and made it worse. If ObamaCare continues to exist in the form Roberts has devised, with much of the mechanism for funding its requirements stripped out, the consequences for the country and for our health-care system may be even more disastrous than they would have been had the problematic law simply been allowed to stand as it was.

But at least the Chief Justice preserved the reputation of the Court from criticism for judicial activism — what a former University of Chicago law school lecturer alleged would have been “an unprecedented, extraordinary step” if it were to “somehow overturn a duly constituted and passed law.”

The fear of such criticism may have been exaggerated: the same week that the Court upheld Obamacare, it overturned a total of 32 out of 33 state and federal statutes — every one of them a duly constituted and passed law. The Court’s reputation apparently suffered no significant damage from enforcing the Constitution in those cases, and in retrospect if might have been better, as Tevi Troy’s essential article shows, if the Court had applied the Constitution to the 33rd as well.

 

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Page 15 and Page 35

In today’s New York Post, I speculate that Chief Justice John Roberts may have wanted us to see the illogic in his fascinatingly sophistic opinion in the Obamacare case:

Like many people who read yesterday’s decision, I will go to my grave unable to reconcile the plain fact that on page 15 Chief Justice John Roberts says the bill’s mandate to buy health insurance isn’t a tax — only to say on page 35 that it is a tax.

In a beautiful turn of phrase, the four dissenting justices said Roberts’ contortion on this matter “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

Roberts’ grotesque offense against elementary logic is so bald-faced, I’m almost tempted to believe he left it there on purpose, either out of perversity or as a not-so-hidden message that he had ulterior motives for upholding the constitutionality of ObamaCare.

The whole piece is here.

In today’s New York Post, I speculate that Chief Justice John Roberts may have wanted us to see the illogic in his fascinatingly sophistic opinion in the Obamacare case:

Like many people who read yesterday’s decision, I will go to my grave unable to reconcile the plain fact that on page 15 Chief Justice John Roberts says the bill’s mandate to buy health insurance isn’t a tax — only to say on page 35 that it is a tax.

In a beautiful turn of phrase, the four dissenting justices said Roberts’ contortion on this matter “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

Roberts’ grotesque offense against elementary logic is so bald-faced, I’m almost tempted to believe he left it there on purpose, either out of perversity or as a not-so-hidden message that he had ulterior motives for upholding the constitutionality of ObamaCare.

The whole piece is here.

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“Re-Evaluation” of Roberts Begins

For months, as liberals anticipated the Supreme Court would rule ObamaCare unconstitutional, there has been a constant drumbeat of criticism against what they assumed was a conservative majority that would thwart the president’s signature legislation. In particular, Chief Justice John Roberts was the focus of a great deal of uncomplimentary commentary, with many arguing that by leading the Court to the right he would establish a tainted legacy as a partisan judge who had damaged the institution he led. But within moments of the announcement that Roberts had sided with the four liberals on the Court, the “re-evaluation” of the chief justice had begun.

As the New York Times‘s Ethan Bronner wrote in the paper’s Caucus blog, previously, “He was seen by many, at least on the left, as a right-winger more devoted to conservative politics than the purity of the law. That could change.” Count on it.

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For months, as liberals anticipated the Supreme Court would rule ObamaCare unconstitutional, there has been a constant drumbeat of criticism against what they assumed was a conservative majority that would thwart the president’s signature legislation. In particular, Chief Justice John Roberts was the focus of a great deal of uncomplimentary commentary, with many arguing that by leading the Court to the right he would establish a tainted legacy as a partisan judge who had damaged the institution he led. But within moments of the announcement that Roberts had sided with the four liberals on the Court, the “re-evaluation” of the chief justice had begun.

As the New York Times‘s Ethan Bronner wrote in the paper’s Caucus blog, previously, “He was seen by many, at least on the left, as a right-winger more devoted to conservative politics than the purity of the law. That could change.” Count on it.

The way this process works is that whenever an avowed conservative crosses over to the left,, that person is lionized as attaining a new maturity and transcending partisanship. That was certainly the case with David Souter, whose appointment to the Supreme Court was among the greatest mistakes of George H.W. Bush’s presidency. And now that Roberts has saved President Obama’s bacon, we can expect those negative mainstream media profiles of his Court to be turned into glowing accolades for his respect for precedent and desire to preserve the integrity of the Court.

By contrast, Anthony Kennedy, who had received more than his share of liberal praise in recent years as the left courted the supposed swing vote, will start getting the same abuse that is customary for Justices Scalia, Alito and Thomas, because he joined them in a vigorous and principled dissenting opinion that would have ruled all of ObamaCare constitutional.

Nevertheless, the left’s enthusiasm for Roberts will be somewhat tempered. By ruling that the Affordable Care Act was a tax and therefore constitutional, the chief justice provided the legal rationale the law needed. But Roberts’ compromise was not what liberals wanted. By affirming that the law was a tax, Roberts made President Obama look like a liar because he had pledged it was no such thing. His opinion also meant there was a majority in favor of limiting the reach of the Commerce Clause, a principle conservative legal scholars have vainly advocated for for decades.

But that will provide no comfort for conservatives who understand all too well that Roberts could have joined the four dissenters in a decision that would have brought an abrupt halt to the expansion of the federal government’s power. Liberals do well to rejoice today, as this means a historic opportunity has been lost to restrain the growth of the federal leviathan.

Conservatives will bitterly remember this day and Roberts’ role in it. So, it is little surprise the right-wing blogosphere is bubbling over with bitter reproaches and even some over-the-top calls for the impeachment of the chief justice. Such chatter is a waste of time. But it’s clear that Roberts’ apparent desire to keep the Court out of the political fray has led him to make a decision that will forever ruin his reputation with the right while endearing him to the left.

But if Roberts thinks the left will embrace him the way they did other Republicans who joined the liberals, this will have to be only the first of a series of betrayals of conservative positions on his part. In particular, so long as the landmark Citizens United ruling that protected political speech and invalidated campaign finance restrictions stands, he will continue to be abused (though perhaps not as much as the other conservatives).

Roberts is wrong to think this decision will protect the Court from the kind of criticism it got after Citizens United, because political issues will always be part of the Court’s brief. Nevertheless, what happened today is a reminder to conservatives that liberals have a clear advantage in the judiciary that can only be counter-balanced by victories at the ballot box. Today’s decision can be rendered a footnote to history if a Republican Congress and president are able to repeal ObamaCare next January. But given the desire for some jurists to retain the good opinion of the mainstream media, the right must understand that winning judicial battles is not as simple as winning an election.

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