Commentary Magazine


Topic: John Roberts

ObamaCare: Live by a Typo. Die By It.

New York Times columnist Paul Krugman thinks it’s outrageous. The U.S. Supreme Court’s decision to hear King v. Burwell, the case in which the state of Oklahoma, joined by numerous other groups, challenged the constitutionality of the government’s interpretation of the Affordable Care Act, puts, as our John Steele Gordon noted yesterday, the entire future of the ObamaCare apparatus in jeopardy. Krugman’s point in his latest column is that the case rests on what he refers to as a “typo”—the fact that the text of the ACA said that the federal subsidies that prop up the scheme could only go to state-run exchanges and not to federal marketplaces set up to accommodate those who live in states that did not create such exchanges. But for those who remember the technicality invented by Chief Justice John Roberts to ensure that ObamaCare survived a much more substantive constitutional challenge, the answer is clear: live by a typo, die by it as well.

Read More

New York Times columnist Paul Krugman thinks it’s outrageous. The U.S. Supreme Court’s decision to hear King v. Burwell, the case in which the state of Oklahoma, joined by numerous other groups, challenged the constitutionality of the government’s interpretation of the Affordable Care Act, puts, as our John Steele Gordon noted yesterday, the entire future of the ObamaCare apparatus in jeopardy. Krugman’s point in his latest column is that the case rests on what he refers to as a “typo”—the fact that the text of the ACA said that the federal subsidies that prop up the scheme could only go to state-run exchanges and not to federal marketplaces set up to accommodate those who live in states that did not create such exchanges. But for those who remember the technicality invented by Chief Justice John Roberts to ensure that ObamaCare survived a much more substantive constitutional challenge, the answer is clear: live by a typo, die by it as well.

Let’s specify up front that Krugman isn’t entirely wrong that the substance of this case rests entirely on a technicality. As I noted in October when a federal court in Oklahoma ruled against the ACA on this issue, the anomaly by which the law granted subsidies only for state exchanges was not necessarily intended by those who drafted the law although there was some dispute about funding for the subsidies. But the Democratic majorities that crammed this legal monstrosity through both houses of Congress were not that interested in its content. As then House Speaker Nancy Pelosi famously said, the law had to be passed before anyone would know what was in it.

The idea that it could be scuttled by a drafting error strikes Krugman as a terrible injustice that would not be permitted if sensible people were staffing the judiciary. He likens the prospect of ObamaCare’s destruction on such a seemingly minor point to the discovery of a mistake made in the filing of the deed of his parent’s home which might have left his mother’s garden outside of their property. But there are two points that serve to render his complaint both hypocritical as well as insubstantial.

The first is that the ACA was judged to be constitutional on a technicality that was far more bogus than the one about state and federal exchange subsidies. In 2012, the Supreme Court ruled in favor of the constitutionality of the law on a narrow 5-4 vote. But the deciding fifth vote cast by Chief Justice Roberts was based on his belief that the entire thing could be construed as a tax and that this allowed the federal government to act in this manner. The other eight justices had divided evenly on the question that both the plaintiffs and those defending the government had thought was at issue: whether ObamaCare was an unconstitutional breach of the Commerce Clause that would have unlawfully forced citizens to engage in commerce. Roberts agreed with the four other conservative judges that the challenge to its constitutionality on this point was valid but concocted the tax argument in order to keep the high court out of an issue that he appears to believe should only be decided by Congress and the voters.

At the time, conservatives howled at the absurd nature of Roberts’s argument that allowed a blatantly unconstitutional piece of legislation to survive. In response, liberals merely crowed at their victory and reminded their opponents to respect the rule of law whether they liked the outcome or not.

Two years later, it appears the shoe is on the other foot and all of a sudden liberals like Krugman no longer think it’s right for laws to be narrowly decided in an arbitrary manner that hangs on legal technicalities or bizarre interpretations of the law. But there is more here at play than turnabout being fair play.

Krugman falsely argues that the law is working well, something that is given the lie by the fact that much of its substance has been delayed until next year so as to give Democrats a better chance in the midterms as well as its rollout. Contrary to the president’s false promises, Americans were not allowed to keep their insurance or their doctors, if they liked. The increases that many will suffer next year, as well as the potentially devastating impact on employment, once the individual mandate begins to be enforced also destroys his premise. But even if we accept that some will lose benefits they have been given under the law, that shouldn’t motivate the court to ignore the contradiction in the text.

At the heart of the current case is a question of what it means to pass a law. Laws are not merely amorphous notions but actual documents that must be drafted carefully lest some odd anomaly in their language allow governments to exploit the citizens or individuals to profit unfairly. If the text doesn’t actually matter, then the government may interpret them in any way it likes to the detriment of the rights of all Americans.

Seen in that light, Krugman’s railing at the “typo” and the “corruption” involved in this case that should—if Roberts doesn’t invent some even more absurd rationale to save ObamaCare again—destroy the president’s principal legislative achievement doesn’t seem so reasonable. At stake here is not just the future of health care or a president’s legacy, but also the rule of law.

Without the rule of law, there is no individual liberty or democracy. It is on that ground, if nothing else, that the Supreme Court should rule against the government. If it doesn’t, the corruption will not so much be liberal hypocrisy but their agenda that seeks to trash this basic principle of accountability.

Read Less

Demonizing SCOTUS: The OCare Precedent

When Chief Justice John Roberts rewrote ObamaCare from the bench in order to save it, most of the ramifications were immediately apparent. But there was one aspect of the stunt that as a member of the Supreme Court Roberts should have been sensitive to: precedent. Having caved to a public intimidation campaign from the president and his congressional allies (as well as the media) Roberts signaled that the way to get a conservative justice to discard his better judgment and rule against constitutional law was to impugn the court’s reputation in the public square.

Be mean to John Roberts and his friends, in other words, and you can have your welfare state for all he cares. This was among the most damaging effects of Roberts’s call back in 2012. And unsurprisingly, Democrats have learned their lesson. I wrote at the time that within days of the decision the media had gone back to bashing Roberts and the high court’s poll numbers had dropped. But Democrats had a found a well they were certain to return to in times of desperation. And as the Hill reports today, that time has come:

Read More

When Chief Justice John Roberts rewrote ObamaCare from the bench in order to save it, most of the ramifications were immediately apparent. But there was one aspect of the stunt that as a member of the Supreme Court Roberts should have been sensitive to: precedent. Having caved to a public intimidation campaign from the president and his congressional allies (as well as the media) Roberts signaled that the way to get a conservative justice to discard his better judgment and rule against constitutional law was to impugn the court’s reputation in the public square.

Be mean to John Roberts and his friends, in other words, and you can have your welfare state for all he cares. This was among the most damaging effects of Roberts’s call back in 2012. And unsurprisingly, Democrats have learned their lesson. I wrote at the time that within days of the decision the media had gone back to bashing Roberts and the high court’s poll numbers had dropped. But Democrats had a found a well they were certain to return to in times of desperation. And as the Hill reports today, that time has come:

Senate Democrats and liberal groups are mounting a pressure campaign against the Supreme Court, hoping to influence future decisions by blasting conservative justices for alleged political bias.

The effort from the left also portrays the high court as an instrument rigged to help the wealthy, and is intended to energize Democratic voters and increase turnout in the midterm elections.

Some legal experts see the effort as akin to basketball or soccer players “working the ref” in a high-stakes game.

Critics say Democratic leaders used a similar strategy in 2010, when they piled on the court for striking down the ban on political spending by corporations in Citizens United v. Federal Election Commission.

Some court watchers speculated that Chief Justice John Roberts felt chastened by the angry reaction and sought to avoid another uproar, when he crafted the majority decision in 2012 that largely upheld ObamaCare.

“The left clearly tried to work the refs on the Affordable Care Act,” said Randy Barnett, a professor at the Georgetown University Law Center. “They worked the refs after Citizens United, which helped set things up for the Affordable Care Act challenge. If it seems to work, why not continue? It’s unfortunate, I think, that they’ve been encouraged in this behavior by its apparent success.”

And it’s not just a public disinformation campaign:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senate Rules Committee Chairman Charles Schumer (D-N.Y.) plan to hold hearings on the court’s ruling in McCutcheon v. Federal Election Commission striking down aggregate limits on campaign donations. …

Senate Majority Harry Reid (D-Nev.) panned it for granting greater influence to wealthy donors, such as Charles and David Koch, the wealthy conservative donors, whom he again slammed on the Senate floor Monday.

Of course Reid would find a way to turn a complaint about the court into another tool in his quest to turn libertarian activists into former people. In one sense, this is irrational, because it has no intellectual merit and should be beneath the leaders of the world’s greatest deliberative body. But in another sense, it’s completely rational: people respond to incentives, and in his ObamaCare ruling Roberts incentivized demonizing–that’s the Hill’s word–the Supreme Court.

The story notes that chief among the left’s worries is the upcoming ruling on the ObamaCare contraception mandate. And on that note, the best line in the story has to be this: “Democrats say the present-day court lacks the experience to understand the corrupting influence of money in politics, because none of its members have held publicly elected office.” Democrats just don’t believe that law abiding, upstanding men and women who have never been offered a bribe could ever really understand ObamaCare. And you’ve got to admit, they have a point, don’t they?

We may or may not find out if the pressure campaign works. After all, a decision on the case may not be a result of the intimidation tactics, either as a concession to them or as an act of defiance against them. It may be just another ruling on the merits of the case. But that’s one of the consequences of the Democrats’ shenanigans: the idea that the court will rule on the merits of the case becomes only one of several possibilities. Roberts thought he was protecting the legitimacy of the court in his 2012 decision. It’s quite clear now that he has done precisely the opposite.

Read Less

Media Clings to Disproven Narrative; Hilarity Ensues

As elated as mainstream journalists were when Chief Justice John Roberts decided to cave to political pressure and uphold ObamaCare, it posed a challenge to the left. They had become so invested in their narrative of the illegitimacy of conservative constitutional jurisprudence, they may have even believed it. As the Supreme Court signaled it was considering striking down the constitutionally suspect ObamaCare, liberals ramped up the rhetoric.

But because of the vote-buying and procedural shenanigans used to pass the bill, and because of its extreme unpopularity and bipartisan opposition, supporters of ObamaCare actually needed the country to somehow accept the legitimacy of the court’s opinion, which they had spent months denigrating. Liberals couldn’t break the habit anyway, however. Though Roberts mistakenly thought he would win the court some legitimacy from the president and his palace guards in the press, the opposite happened: with the ObamaCare decision now in their pockets, they resumed trashing the Roberts court as far more “radical” than any of its predecessors.

Though it was sad to watch Roberts get played so easily by the administration and its allies, there was still something amusing about the left’s reaction. They had to engage in some pretty nifty intellectual gymnastics to argue that the court was not moving right despite its major liberal decisions but that the Roberts court’s major liberal decisions were part of its master plan to trick the public into complacency. And so it is with this week’s court rulings. The Roberts court made the right call in striking down the Defense of Marriage Act, as we have argued in this magazine. But it was also a ruling the left celebrated not just from a legal standpoint but from a cultural one. So how to argue that the Roberts court is radical when it so clearly is not? The Times gives it a try today:

Read More

As elated as mainstream journalists were when Chief Justice John Roberts decided to cave to political pressure and uphold ObamaCare, it posed a challenge to the left. They had become so invested in their narrative of the illegitimacy of conservative constitutional jurisprudence, they may have even believed it. As the Supreme Court signaled it was considering striking down the constitutionally suspect ObamaCare, liberals ramped up the rhetoric.

But because of the vote-buying and procedural shenanigans used to pass the bill, and because of its extreme unpopularity and bipartisan opposition, supporters of ObamaCare actually needed the country to somehow accept the legitimacy of the court’s opinion, which they had spent months denigrating. Liberals couldn’t break the habit anyway, however. Though Roberts mistakenly thought he would win the court some legitimacy from the president and his palace guards in the press, the opposite happened: with the ObamaCare decision now in their pockets, they resumed trashing the Roberts court as far more “radical” than any of its predecessors.

Though it was sad to watch Roberts get played so easily by the administration and its allies, there was still something amusing about the left’s reaction. They had to engage in some pretty nifty intellectual gymnastics to argue that the court was not moving right despite its major liberal decisions but that the Roberts court’s major liberal decisions were part of its master plan to trick the public into complacency. And so it is with this week’s court rulings. The Roberts court made the right call in striking down the Defense of Marriage Act, as we have argued in this magazine. But it was also a ruling the left celebrated not just from a legal standpoint but from a cultural one. So how to argue that the Roberts court is radical when it so clearly is not? The Times gives it a try today:

Viewed in isolation, the Supreme Court term that just ended had elements of modesty. The court declined to do away with affirmative action, gave Congress another shot at salvaging the Voting Rights Act and refused to find a constitutional right to same-sex marriage.

But glancing at an end-of term snapshot can be misleading….

Chief Justice Roberts has proved adept at persuading the court’s more liberal justices to join compromise opinions, allowing him to cite their concessions years later as the basis for closely divided and deeply polarizing conservative victories.

His patient and methodical approach has allowed him to establish a robustly conservative record while ranking second only to Justice Anthony Kennedy as the justice most frequently in the majority.

This is a stunningly honest statement of the Times’s extremism on legal issues. Roberts has, the Times tells us, made major ruling after major ruling upholding liberal conventional wisdom on a host of cultural and political issues deemed essential to the liberal project, and he has often sought not to use the court majority to push through wholly conservative opinions but instead to engage with the liberal justices, find common ground, and forge compromises that meet in the middle.

That may sound like an eminently reasonable and, from a political standpoint, admirable record. But the Times strongly disapproves of such behavior, because it does not want the court to possess such legitimacy and it does not approve of compromise with conservatives it believes should only be the object of demonization.

The Times tells us that a larger-than-usual percent of the court’s decisions were unanimous this year. But that, too, is bad news, because the article also tells us that Obama’s solicitor general has had below-average success in front of the court defending administration preferences. To the Times, that means the liberal justices are complicit in a rightward shift. The reality, of course, is that President Obama, a supposed constitutional law expert, is uniquely poor at governing according to the Constitution.

The Washington Post also tries to fit this week’s court decisions into its larger narrative about the Roberts court, with similar results. It reviews the liberal decisions handed down by the judges recently and then quotes a former lawyer in the Obama White House: “If you weren’t paying close attention, you might say, ‘What a liberal Supreme Court we have.’ ”

That’s an interesting phrase, “if you weren’t paying close attention.” And it basically sums up the way the media, confronted with the essential and obvious fraudulence of its narrative about the Roberts court, has explained away its journalistic advocacy.

Don’t be fooled by the moderate and ideologically diverse record of the Roberts court, they say, and don’t be fooled by the lengths to which Roberts will go to compromise with liberal justices and craft decisions that all the judges can get behind. That may be the reality, but it conflicts with the press narrative and one of them must be wrong. It can’t be the press, can it?

Read Less

Voter ID: When Judges Play Politics

Liberals celebrated yesterday when the same Pennsylvania Commonwealth Court judge who upheld the state’s voter ID law in August reversed himself and enjoined its enforcement on Election Day. There’s no denying that this is a defeat for the legislature that passed the bill as well as the overwhelming majority of Americans who back ID laws as a commonsense measure to deter voter fraud. But frustrating as it is, it is but a temporary setback. Both Judge Robert Simpson and the state Supreme Court have indicated that the law is constitutional. Yet Simpson, like many another judge when asked to affirm legal principles that are under attack by influential liberal forces, wavered when put to the test.

When Pennsylvanians go to the polls next month, they will be still asked to identify themselves with a photo card. But, as was the case in April when the rules were rolled out during the state’s primary, no one will be denied a ballot, even if they have no such documentation. The left-wingers who sued to strike down the law claimed voters would be unfairly disenfranchised. Simpson did not fully accept their assertions, but rather than face the storm that fully upholding the law would bring down on his head, he said there was not enough time before the election to ensure “liberal access.” While this means it will still be possible this year for political machines to turn out fictitious voters without fear of being caught — a time-honored political tradition in Philadelphia — in the future such shenanigans will be more difficult.

Read More

Liberals celebrated yesterday when the same Pennsylvania Commonwealth Court judge who upheld the state’s voter ID law in August reversed himself and enjoined its enforcement on Election Day. There’s no denying that this is a defeat for the legislature that passed the bill as well as the overwhelming majority of Americans who back ID laws as a commonsense measure to deter voter fraud. But frustrating as it is, it is but a temporary setback. Both Judge Robert Simpson and the state Supreme Court have indicated that the law is constitutional. Yet Simpson, like many another judge when asked to affirm legal principles that are under attack by influential liberal forces, wavered when put to the test.

When Pennsylvanians go to the polls next month, they will be still asked to identify themselves with a photo card. But, as was the case in April when the rules were rolled out during the state’s primary, no one will be denied a ballot, even if they have no such documentation. The left-wingers who sued to strike down the law claimed voters would be unfairly disenfranchised. Simpson did not fully accept their assertions, but rather than face the storm that fully upholding the law would bring down on his head, he said there was not enough time before the election to ensure “liberal access.” While this means it will still be possible this year for political machines to turn out fictitious voters without fear of being caught — a time-honored political tradition in Philadelphia — in the future such shenanigans will be more difficult.

At the heart of this case are a couple of fallacies. The plaintiffs and their myriad supporters in the mainstream liberal press continue to promote the idea that hordes of legal voters are going to be stopped from casting their ballots. But Simpson’s concerns about the fact that the state hadn’t already issued enough new free state IDs that can be used in place of a drivers’ license tells us something that many political analysts already knew. There has been no surge of voters demanding IDs, because the vast majority of Pennsylvanians already have them since they are necessary for virtually every possible transaction a citizen can make, as well as travel. But it is equally true that many of those few who don’t are the least likely to care about voting. Though the state embarked on a massive campaign of voter information via ads and mailings, the number of ID cards issued is far below the numbers the law’s opponents claimed needed one. That makes it likely that it is their estimates that are widely inflated.

Despite the talk of the state placing obstacles in the path of those who seek IDs, the evidence actually shows that in most cases anyone who really wants an ID can get one with a minimum of effort. That was proved, to the embarrassment of the law’s opponents, when the lady whose name still sits atop the decision as the lead plaintiff got her state photo ID. Viviette Applewhite, a 93-year-old woman who had marched with Martin Luther King Jr. for civil rights, was the ideal symbol of the effort to brand voter ID as a new version of Jim Crow. But all she had to do get an ID was to was to stroll into a DMV branch office and ask for one.

At bottom, the attempt to strike down the law isn’t a defense of genuine voting rights. After all, what could be more reasonable than requiring a person who presents themselves at the polls to show they are who they say they are. The law’s opponents are stuck in a logical dead-end in which they are effectively asserting that no questions should ever be asked of a potential voter, even if they are not registered, registered in another district or state or even not a citizen–they should just be allowed to vote. They claim there is no such thing as voter fraud in the U.S., a proposition that requires us to forget everything we know about American political history and human nature, but seem to have as their only purpose the enabling of such fraud.

But it would have taken a judge with more intestinal fortitude than Robert Simpson to point this out. Like U.S. Supreme Court Chief Justice John Roberts, who conjured up an absurd rationale for affirming the constitutionality of ObamaCare this past June so as to dodge the charge that the court was being political, Simpson also sought an expedient compromise in which he could affirm a legal principle without actually defending it.

This sorry chapter proves again that courage is the most important of all the virtues, since in its absence it is impossible to uphold the others. When judges play politics in this manner, they may think they are evading criticism but what they are really doing is bringing the legal system into disrepute.

In the future, Pennsylvania will have a voter ID law, since it will not be possible in 2014 or 2016 for even the most cowardly of judges to claim that the state needs more time to implement a law that is clearly constitutional. The same will probably be true of other states where liberals have sought to stop the laws through the courts. But in the meantime, it will be business as usual for those who seek to cheat and those determined to enable such practices.

Read Less

Chief Justice’s Approval Rating Dives 40 Points With Republicans

Obviously Chief Justice John Roberts was going to take a hit in the polls after his ObamaCare decision — but a 40-point drop among Republicans? There’s no way he ever bounces back from this, right?

A Gallup poll released Monday found that Roberts’s favorables dropped 11 percentage points among all Americans since the last survey in September 2005. The most recent polling showed Roberts with 39 percent of national adults having a favorable opinion of him. In 2005, the same poll found that 50 percent of adults had a favorable view of the chief justice.

Among Republicans, Roberts’s drop has been more drastic. Sixty-seven percent of Republicans had a favorable view of Roberts in 2005, a figure which plummets 40 points to 27 percent in the 2012 survey. Four percent had an unfavorable view of the chief justice in 2005, jumping to 44 percent in the new poll.

Roberts’s betrayal wouldn’t have been as gut-wrenching if his decision had been based on principled arguments, even if they were wrong. The elevation of politics over principle made it much worse. He wasn’t just mistaken; he sold out his own side for political expediency. Americans have come to expect that from politicians, but not from the Supreme Court.

Read More

Obviously Chief Justice John Roberts was going to take a hit in the polls after his ObamaCare decision — but a 40-point drop among Republicans? There’s no way he ever bounces back from this, right?

A Gallup poll released Monday found that Roberts’s favorables dropped 11 percentage points among all Americans since the last survey in September 2005. The most recent polling showed Roberts with 39 percent of national adults having a favorable opinion of him. In 2005, the same poll found that 50 percent of adults had a favorable view of the chief justice.

Among Republicans, Roberts’s drop has been more drastic. Sixty-seven percent of Republicans had a favorable view of Roberts in 2005, a figure which plummets 40 points to 27 percent in the 2012 survey. Four percent had an unfavorable view of the chief justice in 2005, jumping to 44 percent in the new poll.

Roberts’s betrayal wouldn’t have been as gut-wrenching if his decision had been based on principled arguments, even if they were wrong. The elevation of politics over principle made it much worse. He wasn’t just mistaken; he sold out his own side for political expediency. Americans have come to expect that from politicians, but not from the Supreme Court.

Republicans aren’t going to forgive Roberts anytime soon. But what about the other conservative justices on the Supreme Court who were reportedly furious with him?

Time heals all wounds, as the saying goes, and according to a couple of justices, the rancor at the U.S. Supreme Court in the wake of the Affordable Care Act decision probably won’t survive the summer.

“Everyone here does have the sense the institution is so much more important than the nine who are here at any point in time and we should not do anything to leave it in worse shape than it was in when we came on board,” one justice told the National Law Journal. “My guess is we’ll come back in the fall and have the opening conference and it will be almost the same. I would be very surprised if it’s otherwise.”

Another justice echoed those sentiments, for the most part. “The term always starts friendly and relaxed, and gets tense at the end when the most difficult cases pile up. It’s still collegial, but there is an overlay of frustration,” the NLJ reported a second justice as saying.

This seems much more intense than the usual “overlay of frustration.” Have there ever been this many leaks after a Supreme Court decision? That alone tells you the extent of the friction. Roberts didn’t just have a disagreement with his conservative colleagues; he basically threw them under the bus on what may be the defining case of his tenure.

Read Less

The Constitution, Court, and Fourth of July

It seems safe to say that no Supreme Court decision has ever been extolled more effusively by its admirers than the ObamaCare one, notwithstanding the fact that it was — in the words of the admirers — based on an unpersuasive argument whose coherence is easy to question.

Jeffrey Toobin at The New Yorker described Chief Justice Roberts upholding ObamaCare under the “tax” argument as a “singular act of courage” — although Toobin admitted, “[f]rankly, that argument is not a persuasive one.” Jeffrey Rosen at The New Republic described the chief justice’s action as an admirable legal “twistification,” comparable to those of Chief Justice John Marshall — even though it “would be easy, of course, to question the coherence of the combination of legal arguments that Roberts embraced.” Unpersuasive, incoherent, but what an act of courage!

Read More

It seems safe to say that no Supreme Court decision has ever been extolled more effusively by its admirers than the ObamaCare one, notwithstanding the fact that it was — in the words of the admirers — based on an unpersuasive argument whose coherence is easy to question.

Jeffrey Toobin at The New Yorker described Chief Justice Roberts upholding ObamaCare under the “tax” argument as a “singular act of courage” — although Toobin admitted, “[f]rankly, that argument is not a persuasive one.” Jeffrey Rosen at The New Republic described the chief justice’s action as an admirable legal “twistification,” comparable to those of Chief Justice John Marshall — even though it “would be easy, of course, to question the coherence of the combination of legal arguments that Roberts embraced.” Unpersuasive, incoherent, but what an act of courage!

On the right, those defending the chief justice praise him for meeting the possible challenge to the Court’s legitimacy from a contentious 5-4 vote, for his skill in making ObamaCare the issue in the coming election rather than the Court, and for giving the people the chance to determine the ultimate fate of that legislation, rather than having it decided for them by a 5-4 vote. Then he joined in deciding the constitutionality of ObamaCare by a 5-4 vote. He apparently switched his vote to endorse the “tax” argument he had demolished at oral argument.

Something is wrong with that picture; perhaps it will be redrawn in November. The New York Sun, in a beautifully-written editorial, describes the Roberts opinion as unconvincing — “to put it mildly” — and suggests that holding the mandate (1) a “penalty” rather than a “tax” under the Anti-Injunction Act, but (2) a “tax” rather than a “penalty” under the Constitution, “will strike most people as a lawyer’s self-parody.” The Sun ends, however, on an optimistic note:

[W]e’re for bowing to the Court and throwing oneself into the political fray. The Court’s ruling sets up Governor Romney to remind us again that the taxing power is the most dangerous of the powers handed to the Congress. And that when the Democrats get a hold of the Congress, they will use it in every way they can — even in requiring an innocent, law-abiding citizen who is beyond the reach of the Commerce Clause to purchase health insurance. It is a moment to remember that if the Obamacare mandate is a tax, then it is something that can be cut or repealed, as thousands of other taxes have been in the history of our country, almost always to beneficial effect. That is, after all, the bedrock on which our entire revolution began.

As we head into the Fourth of July, that may be the proper approach to the constitutional situation in which we find ourselves — thankful for the Constitution, for the continuing discussions about it, and for the opportunity for the people to render their own judgment in about four months.

Read Less

John Roberts, Chief Sophist

In his Washington Post column, Michael Gerson writes this:

Even in a short time, Roberts’ decision has not worn well. What initially seemed wise now smacks of mere cleverness—less a judge’s prudence than a lawyer’s trick. To find the health care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king—hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.

Mike is right on every particular. What Chief Justice Roberts did was supremely arrogant and unwise. Whatever motivated Roberts—he would undoubtedly insist it was his high-minded concern for the legitimacy of the Court; his critics would say it was his concern for winning the favor of the New York Times—he embraced a role that simply was not his to assume.

Read More

In his Washington Post column, Michael Gerson writes this:

Even in a short time, Roberts’ decision has not worn well. What initially seemed wise now smacks of mere cleverness—less a judge’s prudence than a lawyer’s trick. To find the health care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king—hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.

Mike is right on every particular. What Chief Justice Roberts did was supremely arrogant and unwise. Whatever motivated Roberts—he would undoubtedly insist it was his high-minded concern for the legitimacy of the Court; his critics would say it was his concern for winning the favor of the New York Times—he embraced a role that simply was not his to assume.

If Roberts wants to be a political philosopher, a law professor, or a politician, he is free to pursue those vocations. But if he wants to be a Supreme Court justice, he should take those duties seriously. In mixing and matching his responsibilities—in embracing the title of one thing and acting like another—John Roberts ended up as a sophist.

To be a sophist is no crime—but neither does one belong on the Supreme Court, and certainly not as chief justice.

Read Less

The Great Miscalculation of John Roberts

Conservatives have been rightly disappointed with the Supreme Court ruling to uphold ObamaCare, but that disappointment has been all the more bitter because the case has been full of unpleasant surprises. Conservatives believed they had two objectives to get ObamaCare overturned: convince a majority of the justices there was no “limiting principle” to the individual mandate that would excuse it from setting precedent on the Commerce Clause, and convince Anthony Kennedy (the assumed swing vote) that because there was no limiting principle, the law could not survive an accurate reading of the Commerce Clause.

They did both, and yet still lost the case, thanks to Chief Justice John Roberts’s decision to elevate politics over jurisprudence. But now it’s time for Roberts to confront disappointment himself. Roberts believed he was doing two things by upholding ObamaCare: he was settling the issue of whether the mandate is a tax (it is), thus protecting the Commerce Clause, and he was preventing the further delegitimization of the Supreme Court by the Democrats, thus improving its general reputation. He failed on both counts.

Read More

Conservatives have been rightly disappointed with the Supreme Court ruling to uphold ObamaCare, but that disappointment has been all the more bitter because the case has been full of unpleasant surprises. Conservatives believed they had two objectives to get ObamaCare overturned: convince a majority of the justices there was no “limiting principle” to the individual mandate that would excuse it from setting precedent on the Commerce Clause, and convince Anthony Kennedy (the assumed swing vote) that because there was no limiting principle, the law could not survive an accurate reading of the Commerce Clause.

They did both, and yet still lost the case, thanks to Chief Justice John Roberts’s decision to elevate politics over jurisprudence. But now it’s time for Roberts to confront disappointment himself. Roberts believed he was doing two things by upholding ObamaCare: he was settling the issue of whether the mandate is a tax (it is), thus protecting the Commerce Clause, and he was preventing the further delegitimization of the Supreme Court by the Democrats, thus improving its general reputation. He failed on both counts.

Roberts had good reason to believe his decision to surrender to pressure from the Obama administration and reduce the Court’s power as a supposed equal branch would at least stop the assault on the Court. After all, he held up his end of the bargain. The New York Times waited all of two days to rough Roberts up some more:

The Court’s conservatism calls to mind the defiance of the Court in the 1930s when it regularly struck down New Deal statutes during the Great Depression. But there are important differences. The 1930s Court saw itself as preserving established precedents and principles. The Roberts majority does not have that conservative role. Nor does it play the role of the 1960s Court, whose rulings reinforced a relatively liberal trend in politics.

The current conservatives are not preserving a tradition or articulating a new social consensus. Instead, as the legal historian Robert W. Gordon put it, they have regularly been radical innovators, aggressively stepping into political issues to empower the Court itself.

Roberts extended an open hand to the administration and its allies only to find, as a favorite White House metaphor would have it, a clenched fist. But he shouldn’t have been surprised–nor should he be surprised to read the recent polling showing his Court to have lost some of the public’s respect. Apparently, bowing to pressure and issuing a ruling consistent neither with constitutional law nor public opinion won’t endear him to the people.

But Roberts’s ruling should have at least settled the tax issue. After all, the bill only survives because the mandate must be labeled a tax. When White House Chief of Staff Jack Lew made the Sunday morning talk show rounds, things sounded like they were heading in the right direction for Roberts’s authority. On “Fox News Sunday,” Lew said, “When the Supreme Court rules, we have a final answer.”

So the mandate is a tax, then? Not so fast. Lew meant the constitutionality of the law is settled. As for whether it’s a tax, according to Lew, the Court “said it didn’t matter what Congress called it. It was a penalty for 1 percent.” That is most certainly not what the Court said, but Lew was only repeating what the administration has been saying since the ruling. Press Secretary Jay Carney told reporters a day after the ruling that “You can call it what you want.” But didn’t Roberts call it a tax? Here Carney unleashes the chutzpah:

“With regard to the penalty as was discussed by Chief Justice Roberts in his opinion, for those who could afford health insurance but choose to remain uninsured — forcing the rest of us to pay for their care — a penalty is administered as part of the Affordable Care Act.”

Conservatives may find this maddening, but the worst part of the Carney story is how the reporter framed the debate. The White House, he wrote, “is aggressively fighting back against Republican claims that ObamaCare contains a tax increase.” (Italics are mine.) Far from settling the question, then, Roberts’s decision has rendered the Court’s opinion irrelevant. The debate about ObamaCare continues as if there were no Supreme Court ruling, only now there’s no judicial oversight waiting on the horizon. Roberts seems to have accomplished nothing with this ruling except diminishing the Court’s standing.

Read Less

Was Roberts’ Opinion Only an Essay?

As Peter Wehner notes, now that Chief Justice Roberts has upheld the ObamaCare mandate as a “tax,” the administration no longer views it as a tax. Those finding solace in the fact that the chief justice, while adopting the administration’s extraordinarily weak “tax” argument, at least rejected its Commerce Clause contention, may be surprised to learn the part of his opinion relating to the Commerce Clause did not speak for the Supreme Court.

The official Syllabus notes that “Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit,” and “delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.” Part III-A of the Roberts opinion – concluding the ObamaCare mandate was not valid under the Commerce Clause – was not in the portion of his opinion that represents the opinion of the Court.

Read More

As Peter Wehner notes, now that Chief Justice Roberts has upheld the ObamaCare mandate as a “tax,” the administration no longer views it as a tax. Those finding solace in the fact that the chief justice, while adopting the administration’s extraordinarily weak “tax” argument, at least rejected its Commerce Clause contention, may be surprised to learn the part of his opinion relating to the Commerce Clause did not speak for the Supreme Court.

The official Syllabus notes that “Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit,” and “delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.” Part III-A of the Roberts opinion – concluding the ObamaCare mandate was not valid under the Commerce Clause – was not in the portion of his opinion that represents the opinion of the Court.

You can tell how the Court’s liberal bloc views Roberts’ Commerce Clause opinion by the way Justice Ginsburg describes it in the portion of her opinion that was joined by the three other liberal justices. She calls it the “Chief Justice’s Commerce Clause essay;” depicts it as his “puzzling” attempt “to hem in Congress’ capacity to meet the new problems arising constantly in our ever-developing modern economy;” and concludes that because he ultimately upholds the mandate as a tax, she sees “no reason to undertake a Commerce Clause analysis that is not outcome determinative.”

This is legal language indicating her view that the “puzzling” Commerce Clause opinion of the chief justice can be ignored, as it is not a holding of the Court. The Court’s leading liberal has served notice how the Court will treat the chief justice’s views on the Commerce Clause if a fifth liberal is ever appointed to the Court: as an essay, not a binding precedent.

Of course, if all that is necessary to sustain any federal mandate is to accompany it with a “shared responsibility payment” for those unwilling to abide by it, not only the chief justice’s essay but the entire Commerce Clause is irrelevant. In legalese, the Commerce Clause is “not outcome determinative.”

And under the portion of the Roberts opinion that does in fact speak for the Court, the new “shared responsibility payment” power of Congress is the law of the land. It is hard to think of a broader power than the one the chief justice established, speaking for a Court supposedly concerned about overreaching its authority.

Read Less

Obama’s Systematic Assault on the Truth

The Democratic talking points have been issued and are being followed to the letter (see here and here). And they go like this: The Affordable Care Act (ACA) is not a tax; it’s a penalty. Those who suggests it’s a tax are wrong, in error, disingenuous, and dissemblers.

Here’s the problem, though: characterizing the Affordable Care Act as a tax isn’t simply the interpretation of Chief Justice John Roberts and a majority of the Supreme Court; it’s the interpretation of the Obama administration.

Read More

The Democratic talking points have been issued and are being followed to the letter (see here and here). And they go like this: The Affordable Care Act (ACA) is not a tax; it’s a penalty. Those who suggests it’s a tax are wrong, in error, disingenuous, and dissemblers.

Here’s the problem, though: characterizing the Affordable Care Act as a tax isn’t simply the interpretation of Chief Justice John Roberts and a majority of the Supreme Court; it’s the interpretation of the Obama administration.

As this story put it:

Chief Justice John G. Roberts Jr. said the Court had a duty to uphold an act of Congress if there was a constitutional basis for doing so. And the basis he seized on was the fallback argument [Solicitor General Donald] Verrilli included in the briefs—that the Constitution gives Congress a broad power to impose taxes to “provide for the general welfare.”

The government’s legal brief said the insurance mandate operates in practice as a tax law. No one would be prosecuted or punished for not having insurance. If they had taxable income, however, they would be forced to pay a small tax penalty.

The chief justice agreed with this argument, and so did the four liberal justices. Though Congress may not “order” people to buy insurance, Roberts held in the 5-4 decision, it may impose a small tax on those who refuse.

The Affordable Care Act, then, was upheld as constitutional based on the tax argument put forward by President Obama’s legal team. And yet the Obama administration is now insisting the Affordable Care Act never was a tax, is not now a tax, and shall never be a tax.

This is yet another example of how Barack Obama is a thoroughly post-modern president. Words and facts have no objective standing; they are relative, socially constructed, a way to advance personal reality. If referring to the Affordable Care Act as a tax helps advance the Obama agenda, then it’s a tax. If referring to the ACA as a penalty helps advance the Obama agenda, it becomes a penalty.

You like tomato and I like tomahto.

That philosophy may be fine for liberal arts professors and even tolerable among community organizers. But when the president of the United States systematically assaults truth—if words mean whatever you want them to mean—it becomes rather more problematic. Yet that is precisely where the United States finds itself in the summer of 2012.

Read Less

The Chief Justice’s Irresponsible Decision

I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.

Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.

Read More

I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.

Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.

Conservatives who are (justifiably) upset with Roberts’ decision shouldn’t understate Roberts’ contribution to conservative jurisprudence. As a good friend put it to me, these three premises are absolutely central to contemporary conservative legal thought—and those arguments are now effective law. For example, his dramatically narrowed reading of the Commerce Clause is now binding precedent. This is no small achievement. Lower court judges cannot countermand it unless the Supreme Court itself does so in a future case. And this particular Court, at least, is unlikely to do that. In that respect, then, Chief Justice Roberts moved the Court in a rightward direction—and, his defenders will say, he did so by showing self-restraint and without igniting a political war.

Perhaps. But in the end, Roberts decided the case wrongly—and one cannot help but believe he did so knowingly.

It seems clear that what animated Roberts’ decision was his determination to (in his mind) protect the reputation of the Court by preventing it from overturning the signature domestic achievement of the Obama administration. If the Supreme Court had overturned the Affordable Care Act, it would rank among the most significant (and controversial) cases in American history. Roberts, a man with modest, institutionalist tendencies, did not want to emblazon the Affordable Care Act in government textbooks forever more.

Which makes his decision understandable—but still, in my mind, ultimately irresponsible. Roberts decided on a pre-ordained outcome; he would uphold the Affordable Care Act by essentially re-writing it—an unusual approach for a man who has in the past insisted that it’s inappropriate for the Court to legislate from the bench.

The main challenge Roberts faced was to jerry-rig a (Tax Clause) argument to get him to where he was determined to end up. He employed specious, result-oriented reasoning in order to achieve an unprincipled—but for him, an institutionally desirable—outcome.

It was simply not his place to do this. And on what may have been the most important decision he is ever called upon to write, John Roberts produced a political, even disingenuous, and too-clever-by-half opinion. (Consider the withering dissent by Justices Scalia, Kennedy, Thomas and Alito to be mandatory reading. “What the government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution,” according to the four Justices. “That carries verbal wizardry too far, deep into the forbidden land of the sophists.”)

Chief Justice Roberts put what he perceived to be the interest of the Court ahead of his fidelity to the Constitution. He ended up doing damage to both.

Read Less

When Legacy and Legitimacy Collide

In the opening chapter of his new book Twilight of the Elites, the Nation’s Chris Hayes makes an astute point about the challenge then-Senator Barack Obama set up for himself when running for president. In some ways, it is a recurring theme in presidential politics, but it was clearly more pronounced in Obama’s case. As a candidate, Obama had to defeat the epitome of his party’s establishment: the Clintons, their brand of politics, and their allies–and then run against George W. Bush’s party. To do so, Obama had to tear down the public’s already shaky faith in their elites and their elite institutions. But as a liberal who believes in a muscular federal government, Obama also needed to immediately restore the reputations of those institutions, or he couldn’t govern.

Hayes thinks that’s pretty much what the president tried to do, and ended up being an establishment elite himself. I partially disagree, and what we saw at the Supreme Court yesterday, and in the months and days leading up to it, shows why. The headlines in the mainstream media after ObamaCare survived its own death panel by the mercy of Chief Justice John Roberts were telling. Viewers learned, almost uniformly, that Roberts had saved the Court and its reputation. But that reputation was under constant assault from Obama himself–this time as president–and his allies. As if he were an insurgent candidate again, Obama put in unprecedented effort to tarnish the reputation and legitimacy of the Court, as it turned out decisions he didn’t like and even contemplated overturning his signature piece of legislation. But then a funny thing happened.

Read More

In the opening chapter of his new book Twilight of the Elites, the Nation’s Chris Hayes makes an astute point about the challenge then-Senator Barack Obama set up for himself when running for president. In some ways, it is a recurring theme in presidential politics, but it was clearly more pronounced in Obama’s case. As a candidate, Obama had to defeat the epitome of his party’s establishment: the Clintons, their brand of politics, and their allies–and then run against George W. Bush’s party. To do so, Obama had to tear down the public’s already shaky faith in their elites and their elite institutions. But as a liberal who believes in a muscular federal government, Obama also needed to immediately restore the reputations of those institutions, or he couldn’t govern.

Hayes thinks that’s pretty much what the president tried to do, and ended up being an establishment elite himself. I partially disagree, and what we saw at the Supreme Court yesterday, and in the months and days leading up to it, shows why. The headlines in the mainstream media after ObamaCare survived its own death panel by the mercy of Chief Justice John Roberts were telling. Viewers learned, almost uniformly, that Roberts had saved the Court and its reputation. But that reputation was under constant assault from Obama himself–this time as president–and his allies. As if he were an insurgent candidate again, Obama put in unprecedented effort to tarnish the reputation and legitimacy of the Court, as it turned out decisions he didn’t like and even contemplated overturning his signature piece of legislation. But then a funny thing happened.

Not only did the Court uphold ObamaCare, but Roberts twisted constitutional logic in knots to save the bill. Suddenly, Obama needs the public’s faith in the institution he kicked dirt at for three years to be restored, or the legitimacy of its ObamaCare decision will be called into question. Liberal pundits said the Roberts ruling would improve the Court’s image. It’s possible, but because this legislation was so broadly unpopular, it’s not clear at all that they will applaud this decision. Unlike Roberts, the Congress that passed ObamaCare, highly paid liberal purveyors of Beltway conventional wisdom, and, yes, Obama too, the people are outside the elite institutions looking in.

And what they saw was a display of quintessentially elite behavior. Obama has always been clear: he is a fan of single-payer health insurance, and has always opposed the individual mandate, which he has now embraced, and which he insisted wasn’t a tax. The bill that finally passed in his name was a mess, but the president had to have something–his legacy depended on it. What the process produced was not good legislation, but by that point it no longer mattered; Democratic Party leaders began admitting that nobody had any idea what was actually in the final bill.

Yesterday, at the Supreme Court, John Roberts made a decision based on his legacy as chief justice. He doesn’t seem to completely believe what he wrote in his majority opinion, and neither does anyone else on the Court. Just like the legislation itself, the Court ruling that saved ObamaCare was the result of an elite member of an elite institution thinking about the history books.

The Supreme Court can take some solace in the fact that it wasn’t the only institution whose legitimacy was under constant assault from the Obama administration. Once the Democrats had their overwhelming majority in Congress taken away by the people, it too found itself in the dock. This was ironic, because the Senate was and is still controlled by the Democrats; in order to delegitimize the institution, the Democrats have to perform an ongoing and ugly act of self-sabotage–for example, by blocking broadly popular bills and refusing to pass a budget. And as Bethany reported this morning, the institution of the presidency–currently consumed by a habit of using vulgar language–isn’t faring all that well either.

But the media’s complicity in all this cannot be blamed on the president. Surely, Obama has set a tone, and that tone has been followed. But he isn’t responsible for the more hysterical smears of his supporters. It’s not Obama’s fault, for example, that a writer at a respected liberal journalistic institution accused the country’s most accomplished jurists of attempting a coup–Obama isn’t an editor there, nor is he the fallen education system that produced such thinking.

But he may find that he’s uncorked something he can’t get back in the bottle once he goes looking for institutional legitimacy and only finds rubble. And in such a case, he may find that this, too, will be his legacy.

Read Less

An Enormous Expansion of Federal Powers

The most important sentence in Justice Roberts’s opinion yesterday upholding the Affordable Care Act is the least arresting. The new ObamaCare tax, which Roberts created in order to uphold the Act, “makes going without insurance just another thing the government taxes, like buying gasoline or earn­ing income.”

Despite Roberts’s blithe assurance that a tax on “going without insurance” is nothing new, the fact is that this one sentence expands the powers of the federal government beyond anything previously known. For the first time in U.S. history, the government may tax what you and I do not do. Roberts calls these failures to act “omissions.” For the life of me, I can’t think of an omission — a refusal to act — the government now taxes. Penalties may be imposed for failing to do something (library fines for not returning a book on time, speeding tickets for not observing the speed limit, restaurant fines for not adhering to the health code). But even these require affirmative acts first: I must first check out the book, drive too fast, open a restaurant and scatter food about for the roaches and the rats. But just sitting around and minding my own business? For the first time in U.S. history, I can be taxed for that.

Read More

The most important sentence in Justice Roberts’s opinion yesterday upholding the Affordable Care Act is the least arresting. The new ObamaCare tax, which Roberts created in order to uphold the Act, “makes going without insurance just another thing the government taxes, like buying gasoline or earn­ing income.”

Despite Roberts’s blithe assurance that a tax on “going without insurance” is nothing new, the fact is that this one sentence expands the powers of the federal government beyond anything previously known. For the first time in U.S. history, the government may tax what you and I do not do. Roberts calls these failures to act “omissions.” For the life of me, I can’t think of an omission — a refusal to act — the government now taxes. Penalties may be imposed for failing to do something (library fines for not returning a book on time, speeding tickets for not observing the speed limit, restaurant fines for not adhering to the health code). But even these require affirmative acts first: I must first check out the book, drive too fast, open a restaurant and scatter food about for the roaches and the rats. But just sitting around and minding my own business? For the first time in U.S. history, I can be taxed for that.

Now, it may be objected that Roberts is entirely correct. This is nothing new. The government has been taxing inactivity and omissions for a long time. On some such understanding, income-tax deductions for you are taxes on me. I rent my house; you own yours. You get the mortgage deduction; I pay a higher tax than you — a renter’s tax, you see, a tax on not owning a home.

But this objection is broken-backed. Here’s why. If you were to start over, designing a tax code from scratch, and if you wanted to begin by imposing a tax on renters, how would you do so? By taxing renters. For the affirmative act of renting a place to live. In the absence of a tax on homeowners, however, this newfangled renter’s tax could hardly be described as a tax on the omission of not owning a home. Next you might impose a tax on cigarettes. But would you call this a tax on not not smoking? Ockham’s razor would slice away the double negative: it’s simply a tax on smoking.

Under the current system, moreover, you can forego the mortgage deduction, placing yourself on the same tax level as us renters. Granted, it’s unlikely that you will ever do so — but (in language that Justice Roberts uses elsewhere in his opinion) it’s “fairly possible.” The mortgage deduction is optional. Not the ObamaCare tax, though. If I don’t pay it (and don’t pay for health insurance either), the IRS can withhold my tax refund. The ObamaCare tax is mandatory. For the first time in U.S. history, the federal government is empowered to impose a mandatory tax on the failure or refusal to act.

Justice Roberts anticipated these criticisms. “Even if only a tax,” he said, the payment due for not buying health insurance “remains a burden that the federal government imposes for an omission, not an act.” He tried to “allay” this “concern” by observing that the ObamaCare tax “nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.”

But this “choice” is an illusion of choice. When it comes to cigarette taxes or gasoline taxes, I have a real choice — I can choose not to smoke, not to drive. My choice is between activity and inactivity. Omission waives the tax. When it comes to the ObamaCare tax, however, my choice is to pay or pay. Either I pay for health insurance or I pay the tax. My choice is between two variations of the same activity. The government is compelling me to action I might otherwise not have taken.

The familiar example of something the government might compel U.S. taxpayers to purchase is broccoli. Justice Ruth Bader Ginsburg dismisses this example as “the broccoli horrible.” But in his dissent, Justice Anthony Kennedy takes it seriously. What if broccoli were found to contain unique cancer-fighting properties? Your refusal to consume it would then produce “health-care costs that are a burden on the rest of us,” Kennedy said, in which case — on the logic of the ObamaCare tax — “moving against those inactivities will also come within the federal government’s unenumerated problem-solving powers.”

Anyone who believes this is an abstract phobia has not been paying attention to the culture during the past two decades. All sorts of omissions have come under attack in recent years — pharmacists who refuse to dispense abortifacients, churches and yeshivot that refuse to ordain women, institutions and jurisdictions that refuse to recognize same-sex marriages, golf clubs that refuse to admit women. Statistical disparities are advanced as prima facie evidence of omission — higher average salaries for men than women (or higher average salaries for whites than blacks), magazines that publish fewer women than men (or fewer blacks than whites), schools with lower admission rates for blacks than whites (they rarely have too few women). The new taxing authority created out of whole cloth by Justice Roberts is a powerful tool for compelling compliance with the cultural fashion of the moment. Augusta National can now be taxed for refusing to admit women, and wedding photographers can now be taxed for refusing to snap pictures at same-sex nuptials.

By creating the ObamaCare tax, the Supreme Court of the United States has created a means for the federal government to slap a price on non-conformity.

Read Less

The Damage John Roberts Has Done

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.

Read More

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.

Read Less

The Supreme Court’s Surprise

Well, the Supreme Court, as it has so often before, surprised nearly everybody. Most people thought Justice Kennedy was the pivotal vote. He wasn’t. He thought the whole Affordable Care Act unconstitutional, as did Justices Alito, Scalia, and Thomas. The four liberal justices would have upheld the whole act. It was Chief Justice Roberts who made all the difference, and his idiosyncratic reasoning will have profound constitutional implications far beyond ObamaCare. Here are three, a distinctly mixed bag.

1) He limited federal power under the Commerce Clause. It is not constitutional to require people to buy a product. The clause is limited to regulating commerce that is, not commerce the government wants to see. That’s a big deal, because had the requirement been upheld, the power of the federal government under the Commerce Clause would have become essentially unlimited. As was pointed out in oral argument, you could be required to buy broccoli.

2) He greatly expanded the taxing power. Never before that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you don’t buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

3) He considerably limited federal power over the states. The Tenth Amendment has been largely a dead letter for decades, declared a mere truism. (In which case, why did the Founding Fathers include it?) But Roberts ruled that while the federal government can tie strings to federal money given to the states—in this case additional Medicaid funds—it cannot coerce the states by threatening to take away other funds unless its will is complied with. This is a tactic the federal government has been using for years to, in effect, make states mere administrative districts of the federal government. For instance, it forced the states to adopt 21-to-drink laws or face the loss of federal highway funds. Roberts is arguing that the states are, indeed, sovereign within their own sphere. That is also a big deal.

Read More

Well, the Supreme Court, as it has so often before, surprised nearly everybody. Most people thought Justice Kennedy was the pivotal vote. He wasn’t. He thought the whole Affordable Care Act unconstitutional, as did Justices Alito, Scalia, and Thomas. The four liberal justices would have upheld the whole act. It was Chief Justice Roberts who made all the difference, and his idiosyncratic reasoning will have profound constitutional implications far beyond ObamaCare. Here are three, a distinctly mixed bag.

1) He limited federal power under the Commerce Clause. It is not constitutional to require people to buy a product. The clause is limited to regulating commerce that is, not commerce the government wants to see. That’s a big deal, because had the requirement been upheld, the power of the federal government under the Commerce Clause would have become essentially unlimited. As was pointed out in oral argument, you could be required to buy broccoli.

2) He greatly expanded the taxing power. Never before that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you don’t buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

3) He considerably limited federal power over the states. The Tenth Amendment has been largely a dead letter for decades, declared a mere truism. (In which case, why did the Founding Fathers include it?) But Roberts ruled that while the federal government can tie strings to federal money given to the states—in this case additional Medicaid funds—it cannot coerce the states by threatening to take away other funds unless its will is complied with. This is a tactic the federal government has been using for years to, in effect, make states mere administrative districts of the federal government. For instance, it forced the states to adopt 21-to-drink laws or face the loss of federal highway funds. Roberts is arguing that the states are, indeed, sovereign within their own sphere. That is also a big deal.

Judging by the signs being carried, the overwhelming majority of the crowd outside the Court this morning was anti-ObamaCare. With the upholding of the mandate, ObamaCare survives. For now. But I suspect the already energized anti-Obama forces in this year’s election will now be supercharged. The only way to get rid of this deeply pernicious piece of legislation will be to get rid of Obama. Requiring all candidates for federal office to sign a promise to repeal ObamaCare as a precondition of support would be a starter.

Read Less

Flotsam and Jetsam

Wow. Chris Christie on the Democrats’ threat to shut down the government. “I said, ‘Listen, I’m going to get into a black Suburban and I’m going to drive back to the governor’s residence, go upstairs and order a pizza. I’m going to turn on a baseball game. You all can call me when you decide to reopen the government.'”

Bingo. Bob Zelnick on a replacement for Larry Summers: “I suspect the worst. This man thinks he knows everything about everything to the point where he is immune to fundamental laws of science and economics. What he needs is a person smart enough and with the confidence to say, ‘Mr. President, you are wrong.'”

Yesiree. On Peter Rouse: “[T]here is no reason to think he’ll be any more successful as a moderating force behind President Obama than was Emanuel. Consider, Rouse convinced then-Senator Obama to vote against the confirmation of John Roberts to the Supreme Court.” Until the president changes, or we change presidents, don’t expect anything to improve.

Yup. “It’s the president who showed the GOP a way out of the wilderness. He couldn’t have provided a better message. Republicans are always at their best, always throwing up the broadest tent, when they talk sense on the economy—free markets, the need for growth, the problems of overspending. … Mr. Obama is trying to rally his base; maybe he will. Republicans are trying not to blow it; maybe they will. But should this prove a Democratic bust-up, the least the GOP can do is send the president a thank you.”

No kidding. “Efforts to salvage Middle East peace talks were at full throttle on Thursday as American officials sought to persuade Israel to renew a West Bank settlement freeze with military hardware and diplomatic guarantees while urging the Palestinians to accept a partial end to Israeli building there through a separate set of inducements. So far, no formula had been found.”

Exactly. “President Obama’s latest interview with Rolling Stone magazine is revealing precisely because it is so typical. Everyone — really just about everyone in American politics — is chided, challenged, instructed, judged or admonished in one way or another. The president’s condescension is universal.”

Makes sense. “Pretty much across the board voters’ ill will toward Obama outweighs their ill will toward the Republican Senate candidates. But there is one exception- in Delaware Chris Coons leads Christine O’Donnell 51-21 with folks who don’t like her or Obama- I guess there’s only so far some voters are willing to go. The voters who hate everything and everyone are a key part of the electorate this year- and their support of the GOP is a big part of why the party’s headed for a big victory.”

Wow. Chris Christie on the Democrats’ threat to shut down the government. “I said, ‘Listen, I’m going to get into a black Suburban and I’m going to drive back to the governor’s residence, go upstairs and order a pizza. I’m going to turn on a baseball game. You all can call me when you decide to reopen the government.'”

Bingo. Bob Zelnick on a replacement for Larry Summers: “I suspect the worst. This man thinks he knows everything about everything to the point where he is immune to fundamental laws of science and economics. What he needs is a person smart enough and with the confidence to say, ‘Mr. President, you are wrong.'”

Yesiree. On Peter Rouse: “[T]here is no reason to think he’ll be any more successful as a moderating force behind President Obama than was Emanuel. Consider, Rouse convinced then-Senator Obama to vote against the confirmation of John Roberts to the Supreme Court.” Until the president changes, or we change presidents, don’t expect anything to improve.

Yup. “It’s the president who showed the GOP a way out of the wilderness. He couldn’t have provided a better message. Republicans are always at their best, always throwing up the broadest tent, when they talk sense on the economy—free markets, the need for growth, the problems of overspending. … Mr. Obama is trying to rally his base; maybe he will. Republicans are trying not to blow it; maybe they will. But should this prove a Democratic bust-up, the least the GOP can do is send the president a thank you.”

No kidding. “Efforts to salvage Middle East peace talks were at full throttle on Thursday as American officials sought to persuade Israel to renew a West Bank settlement freeze with military hardware and diplomatic guarantees while urging the Palestinians to accept a partial end to Israeli building there through a separate set of inducements. So far, no formula had been found.”

Exactly. “President Obama’s latest interview with Rolling Stone magazine is revealing precisely because it is so typical. Everyone — really just about everyone in American politics — is chided, challenged, instructed, judged or admonished in one way or another. The president’s condescension is universal.”

Makes sense. “Pretty much across the board voters’ ill will toward Obama outweighs their ill will toward the Republican Senate candidates. But there is one exception- in Delaware Chris Coons leads Christine O’Donnell 51-21 with folks who don’t like her or Obama- I guess there’s only so far some voters are willing to go. The voters who hate everything and everyone are a key part of the electorate this year- and their support of the GOP is a big part of why the party’s headed for a big victory.”

Read Less

Desperation Time

The Democrats are now in full retreat. Less 75 days before the midterm elections, the Republicans have a historic lead in congressional generic polling. The president’s approval rating is sinking. It is now every man for himself, as the Democrats scramble to be the ones on the electoral lifeboat that will survive the electoral wave. The smarter and more vulnerable Democrats distance themselves from Obama on the Ground Zero mosque. A few savvy Senate Democrats back extension of the Bush tax cuts. And now they’re even promising to “improve” ObamaCare.

But wait. As to the latter, why not do it before the election? Hey, there is time. They claim that they’re not out of touch. They say the bill could use some work. So how about it, fellows? Oh, yes, I guess they don’t really mean it. This would be another gambit, a fraudulent inducement really, to convince voters to spare them the ax. We’ll put immigration reform at the top of the agenda. We’ll pass a budget. We’ll fix ObamaCare. Desperation rivals dishonesty as the central feature of their campaign strategy.

As the great philosopher Groucho Marx put it, you don’t like those principles? They’ve got other principles. Well, not a principle but an eye-rolling mantra of declining utility: George W. Bush.

It is worth pondering what they mean by invoking the name of the president whose approval is now higher than Obama’s in key congressional districts. The Republicans are going to start another surge and win the war in Iraq all over again? A Republican Senate will insist on judicial appointees of the caliber of John Roberts and Sam Alito? A Republican Congress will insist we not raise taxes in the midst of a recession or burden the private sector with a mind-numbingly complicated regimen of financial reforms? Many voters would say, “Sign me up!” As his brother Jeb Bush put it: “It’s a loser issue — they have a big L on their foreheads. If that’s all they’ve got, it’s a pretty good indication of the problems that the Democrats face in 2010.”

Then there is the old standby: insult the American people. We are bigots, rubes, and Constitutional illiterates, the left tells us. Finding themselves on the wrong side of an emotional issue, they have lashed out at the Ground Zero mosque opponents. It is too much even for Howard Dean: “I think some of my own folks on my end of the spectrum of the party are demonizing some fairly decent people that are opposed to this. Sixty-five percent of the people in this country are not right-wing biogts.” Aww, thanks, Howard. And it’s 68 percent, but who’s counting?

If you think the Democrats’ strategy seems scattered and bizarre, you are not alone. The voters, already cynical and angry, are unlikely to be charmed by transparent campaign inducements or to be scared by bogeymen. Nor are they likely to reward with their votes those labeling them racists. In fact, if the voters didn’t have reason to throw the Democrats out before, all of this may convince them it’s time to give others a chance.

The desperation of the left stems not merely from the prospect of an election wipeout but also from the potential for a repudiation of the undistilled liberal rule that has riled voters. The “permanent majority”, the shift from a center-right to a center-left country — that fantasy goes poof! The real possibility that ObamaCare will never go into effect, leaving as Obama’s sole accomplishment the completion of the Iraq war successfully waged against his objections, is no doubt terrifying to the left.

But if you think the Democrats are desperate now, wait until the election returns are in. The effort to explain the results — to furiously spin the returns as really good news for Obama and to simultaneously blame the results on anti-Muslim hysteria — will make the Democrats’ current campaign tactics seem tame and sane by comparison.

The Democrats are now in full retreat. Less 75 days before the midterm elections, the Republicans have a historic lead in congressional generic polling. The president’s approval rating is sinking. It is now every man for himself, as the Democrats scramble to be the ones on the electoral lifeboat that will survive the electoral wave. The smarter and more vulnerable Democrats distance themselves from Obama on the Ground Zero mosque. A few savvy Senate Democrats back extension of the Bush tax cuts. And now they’re even promising to “improve” ObamaCare.

But wait. As to the latter, why not do it before the election? Hey, there is time. They claim that they’re not out of touch. They say the bill could use some work. So how about it, fellows? Oh, yes, I guess they don’t really mean it. This would be another gambit, a fraudulent inducement really, to convince voters to spare them the ax. We’ll put immigration reform at the top of the agenda. We’ll pass a budget. We’ll fix ObamaCare. Desperation rivals dishonesty as the central feature of their campaign strategy.

As the great philosopher Groucho Marx put it, you don’t like those principles? They’ve got other principles. Well, not a principle but an eye-rolling mantra of declining utility: George W. Bush.

It is worth pondering what they mean by invoking the name of the president whose approval is now higher than Obama’s in key congressional districts. The Republicans are going to start another surge and win the war in Iraq all over again? A Republican Senate will insist on judicial appointees of the caliber of John Roberts and Sam Alito? A Republican Congress will insist we not raise taxes in the midst of a recession or burden the private sector with a mind-numbingly complicated regimen of financial reforms? Many voters would say, “Sign me up!” As his brother Jeb Bush put it: “It’s a loser issue — they have a big L on their foreheads. If that’s all they’ve got, it’s a pretty good indication of the problems that the Democrats face in 2010.”

Then there is the old standby: insult the American people. We are bigots, rubes, and Constitutional illiterates, the left tells us. Finding themselves on the wrong side of an emotional issue, they have lashed out at the Ground Zero mosque opponents. It is too much even for Howard Dean: “I think some of my own folks on my end of the spectrum of the party are demonizing some fairly decent people that are opposed to this. Sixty-five percent of the people in this country are not right-wing biogts.” Aww, thanks, Howard. And it’s 68 percent, but who’s counting?

If you think the Democrats’ strategy seems scattered and bizarre, you are not alone. The voters, already cynical and angry, are unlikely to be charmed by transparent campaign inducements or to be scared by bogeymen. Nor are they likely to reward with their votes those labeling them racists. In fact, if the voters didn’t have reason to throw the Democrats out before, all of this may convince them it’s time to give others a chance.

The desperation of the left stems not merely from the prospect of an election wipeout but also from the potential for a repudiation of the undistilled liberal rule that has riled voters. The “permanent majority”, the shift from a center-right to a center-left country — that fantasy goes poof! The real possibility that ObamaCare will never go into effect, leaving as Obama’s sole accomplishment the completion of the Iraq war successfully waged against his objections, is no doubt terrifying to the left.

But if you think the Democrats are desperate now, wait until the election returns are in. The effort to explain the results — to furiously spin the returns as really good news for Obama and to simultaneously blame the results on anti-Muslim hysteria — will make the Democrats’ current campaign tactics seem tame and sane by comparison.

Read Less

Flotsam and Jetsam

Every Supreme Court nominee is an advocate of judicial restraint, but not all justices are. Elena Kagan: “[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. … That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.” Like the choice to insist that military recruiters be given access to campuses?

Every Supreme Court confirmation hearing now seems like a charade. As Tom Goldstein noted: “There is nothing in her opening statement that would distinguish her from John Roberts or Sam Alito.” Except the fact that they really believed what they were saying.

By virtually every standard, Kagan is underqualified for the job: “Solicitor-General Elena Kagan practiced law at the Williams & Connolly firm here in the nation’s capitol for only two years, a much briefer stint than the 20.5 year average of other Supreme Court Justices who had no prior judicial tenure before joining the nation’s highest court.”

Not every case is as important as McDonald v. Chicago. Steven Calabresi: “The McDonald holding will lead to a slew of additional challenges against state and municipal laws around the country regulating or restricting the firearms rights of law-abiding citizens. Justice Alito’s opinion is also of tremendous importance because it is based on the premise that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them.”

Every new utterance by Peter Beinart is wackier than the last. “Even as Republicans claim political momentum, the country is in the midst of a major shift leftward when it comes to the role of government.” Yeah, right. Well, if every poll on the subject is wrong, I suppose this could be true.

Obama’s “reset” means giving in to every Russian demand without extracting anything in return. David Christy thinks we shouldn’t “feed the Russian bear” when it comes to entry into the WTO: “Everyone is focused on timing, but the issue is not whether or when Russia should join, but the terms. The fact of the matter is that Russia has yet to accept a set of commitments that justifies entry into the WTO. Terms that are too soft might have a negative impact on the WTO, Russia’s trading partners, and, in the long term, Russia itself.”

Every time someone calls Robert Byrd legendary, remember: “He participated in a filibuster of the 1964 Civil Rights Act and was the only member of the Senate to vote against the confirmation of both Thurgood Marshall and Clarence Thomas to the Supreme Court.”

Every Supreme Court nominee is an advocate of judicial restraint, but not all justices are. Elena Kagan: “[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. … That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.” Like the choice to insist that military recruiters be given access to campuses?

Every Supreme Court confirmation hearing now seems like a charade. As Tom Goldstein noted: “There is nothing in her opening statement that would distinguish her from John Roberts or Sam Alito.” Except the fact that they really believed what they were saying.

By virtually every standard, Kagan is underqualified for the job: “Solicitor-General Elena Kagan practiced law at the Williams & Connolly firm here in the nation’s capitol for only two years, a much briefer stint than the 20.5 year average of other Supreme Court Justices who had no prior judicial tenure before joining the nation’s highest court.”

Not every case is as important as McDonald v. Chicago. Steven Calabresi: “The McDonald holding will lead to a slew of additional challenges against state and municipal laws around the country regulating or restricting the firearms rights of law-abiding citizens. Justice Alito’s opinion is also of tremendous importance because it is based on the premise that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them.”

Every new utterance by Peter Beinart is wackier than the last. “Even as Republicans claim political momentum, the country is in the midst of a major shift leftward when it comes to the role of government.” Yeah, right. Well, if every poll on the subject is wrong, I suppose this could be true.

Obama’s “reset” means giving in to every Russian demand without extracting anything in return. David Christy thinks we shouldn’t “feed the Russian bear” when it comes to entry into the WTO: “Everyone is focused on timing, but the issue is not whether or when Russia should join, but the terms. The fact of the matter is that Russia has yet to accept a set of commitments that justifies entry into the WTO. Terms that are too soft might have a negative impact on the WTO, Russia’s trading partners, and, in the long term, Russia itself.”

Every time someone calls Robert Byrd legendary, remember: “He participated in a filibuster of the 1964 Civil Rights Act and was the only member of the Senate to vote against the confirmation of both Thurgood Marshall and Clarence Thomas to the Supreme Court.”

Read Less

Refuse to Vote Until Kagan Shows Her Cards

On Fox News Sunday, Juan Williams underscored the buyer’s remorse that some on the left are experiencing over Elena Kagan’s nomination:

I think they are worried. I think they’re — they feel, in part because she doesn’t have a record as a judge, that there’s no way to say that she’s predictable and that she will be a stalwart in terms of liberal positions and values and a counterweight to Chief Justice Roberts, Justice Scalia, Justice Thomas, which is what the left really wants. They want somebody who’s going to make the case for that liberal position.

So if you look at issues ranging from death penalty, to the Citizens United case on campaign finance, the sense is, “You know, are we sure where Elena Kagan stands?”

There are a few possibilities here. One is that Obama “knows” her better than the rest of the left and is convinced she’s a dependable vote (i.e., the left is in a tizzy for nothing). Another is that Obama doesn’t know any more than his base and assumed that her moderate demeanor — like his own — was a cover for radical views (i.e., the left is in a tizzy for good reason). A third is that Obama and the left are in some choreographed dance to make her seem moderate but have no real qualms about her (i.e., the left’s tizzy is fake). The latter is a bit hard to buy given the blogospheric semi-meltdown over her non-record.

What we do have is a joint interest by the right and the left in forcing Kagan to be candid — and in voting no, or delaying her nomination, if she is not. Listing the litany of hot-button issues now in the purview of the Supreme Court, Ezra Klein writes:

So where does Elena Kagan fit into all this? You’ll have to ask her. Or, more to the point, the Senate will have to ask her. And hope she’ll answer. John Roberts’s famous “umpire speech” showed the appeal of a nonphilosophical judicial philosophy, but his unexpected activist streak on the bench has shown how little we actually learned from his confirmation process. In reality, the world is made of players, not umpires, and we deserve to know whom we’re drafting.

The only way to force her to live up to her own self-proclaimed standard for candor (she previously wrote that it “is an embarrassment that Senators do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues”) is to refrain from confirming her until she puts her cards on the table. Otherwise, both the left and the right are guessing blind on a critical, lifetime appointment.

On Fox News Sunday, Juan Williams underscored the buyer’s remorse that some on the left are experiencing over Elena Kagan’s nomination:

I think they are worried. I think they’re — they feel, in part because she doesn’t have a record as a judge, that there’s no way to say that she’s predictable and that she will be a stalwart in terms of liberal positions and values and a counterweight to Chief Justice Roberts, Justice Scalia, Justice Thomas, which is what the left really wants. They want somebody who’s going to make the case for that liberal position.

So if you look at issues ranging from death penalty, to the Citizens United case on campaign finance, the sense is, “You know, are we sure where Elena Kagan stands?”

There are a few possibilities here. One is that Obama “knows” her better than the rest of the left and is convinced she’s a dependable vote (i.e., the left is in a tizzy for nothing). Another is that Obama doesn’t know any more than his base and assumed that her moderate demeanor — like his own — was a cover for radical views (i.e., the left is in a tizzy for good reason). A third is that Obama and the left are in some choreographed dance to make her seem moderate but have no real qualms about her (i.e., the left’s tizzy is fake). The latter is a bit hard to buy given the blogospheric semi-meltdown over her non-record.

What we do have is a joint interest by the right and the left in forcing Kagan to be candid — and in voting no, or delaying her nomination, if she is not. Listing the litany of hot-button issues now in the purview of the Supreme Court, Ezra Klein writes:

So where does Elena Kagan fit into all this? You’ll have to ask her. Or, more to the point, the Senate will have to ask her. And hope she’ll answer. John Roberts’s famous “umpire speech” showed the appeal of a nonphilosophical judicial philosophy, but his unexpected activist streak on the bench has shown how little we actually learned from his confirmation process. In reality, the world is made of players, not umpires, and we deserve to know whom we’re drafting.

The only way to force her to live up to her own self-proclaimed standard for candor (she previously wrote that it “is an embarrassment that Senators do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues”) is to refrain from confirming her until she puts her cards on the table. Otherwise, both the left and the right are guessing blind on a critical, lifetime appointment.

Read Less

Specter’s Lesson: Sharper Than a Serpent’s Tooth Is an Ungrateful Abortion Lobby

Consistency on the issues has never been one of Arlen Specter’s character traits as a politician. Yet for all of his flips and flops on just about everything, not to mention his two changes in party affiliation, there is one issue on which the ultra-cynical senator has been fairly consistent: abortion. Indeed, if there is any one point of contention that defined him in his Senate career as a “liberal” Republican, it was his “pro-choice” beliefs. But despite three decades of such a stance and the fact that he has now joined the party that generally treats the backing for abortion as a litmus test, NARAL Pro-Choice America, the premiere pro-abortion lobby, is throwing Specter under the bus in the midst of his life-and-death struggle to hold on to his Senate seat.

NARAL endorsed Specter’s opponent Rep. Joe Sestak yesterday in a statement that dismissed the senator’s decades of work without so much as a backward glance. Indeed, far from treating the question of which pro-choice Democrat to back in the primary as a dilemma, NARAL Pro-Choice America’s president Nancy Keenan stuck the proverbial knife in the back of her group’s erstwhile loyalist by saying: “Many Pennsylvanians are under the impression that Arlen Specter might be a reliable pro-choice voice, but his record says otherwise. Pennsylvanians deserve a senator who considers being pro-choice a position of conviction, rather than a position of convenience.”

Ouch! Reading that, you have to sympathize a bit with Snarlin’ Arlen. You might well say that such a swipe at his character would be justified if you were talking about anything else, but it’s hard to argue that his stand on just about the only issue on which he has been consistent was merely a matter of convenience.

What’s NARAL’s motive? Is it belated payback for Specter’s roughing up of Anita Hill? Maybe. But according to its release, it’s the fact that Specter voted for Republican court nominees John Roberts and Samuel Alito and at one point voted, along with many Democrats, in favor of a ban on partial-birth abortion. But Specter’s record on court nominations has been anything but consistent, given his participation in the vicious attacks on Robert Bork in the 1980s, which pleased NARAL, and his vote in favor of the confirmation of Sonia Sotomayor last year.

But the real answer may be elsewhere in the statement, where Keenan claims, “Joe Sestak is the candidate who is best positioned to defeat an anti-choice opponent in the November general election.” Which is to say that she has read the polls, which show that Specter’s lead over his opponent has evaporated and that Sestak may be a tougher opponent for likely Republican nominee Pat Toomey. Now that he really needs them, Specter is finding that NARAL, like every other political entity, prefers backing likely winners to helping out old friends.

But just to show that ingratitude and extremism aren’t confined to the pro-choicers, the Philadelphia Inquirer reports that the long-shot challenge to Toomey in the Republican primary next week is also motivated by abortion. Activist Peg Luksik thinks that the former congressman isn’t sufficiently fanatic on the issue because despite his consistent pro-life record, he believes there should be exceptions to any potential ban on abortion in cases of rape or incest or to save the life of the mother. Luksik’s claim to fame is that 20 years ago, she won 46 percent of the vote in a failed attempt to deny a GOP gubernatorial nomination to Barbara Hafer, a pro-choice Republican. Since then, she twice ran as a third-party candidate for governor against Tom Ridge.

Toomey is a prohibitive favorite and doesn’t have much to worry about in the primary. But looking ahead to November, he does seem to have a firm grasp on the difference between running against Specter and running against Sestak. While claiming that either would energize the Republican base, the Inquirer quotes Toomey as summing up the contrast between the two in this way:

“If Joe Sestak wins the nomination, I do think it will be a much more substantive discussion about policy, whereas if it was Arlen Specter, it would be a series of personal, negative ads trying to smear character. That’s the way he’s always operated.”

Consistency on the issues has never been one of Arlen Specter’s character traits as a politician. Yet for all of his flips and flops on just about everything, not to mention his two changes in party affiliation, there is one issue on which the ultra-cynical senator has been fairly consistent: abortion. Indeed, if there is any one point of contention that defined him in his Senate career as a “liberal” Republican, it was his “pro-choice” beliefs. But despite three decades of such a stance and the fact that he has now joined the party that generally treats the backing for abortion as a litmus test, NARAL Pro-Choice America, the premiere pro-abortion lobby, is throwing Specter under the bus in the midst of his life-and-death struggle to hold on to his Senate seat.

NARAL endorsed Specter’s opponent Rep. Joe Sestak yesterday in a statement that dismissed the senator’s decades of work without so much as a backward glance. Indeed, far from treating the question of which pro-choice Democrat to back in the primary as a dilemma, NARAL Pro-Choice America’s president Nancy Keenan stuck the proverbial knife in the back of her group’s erstwhile loyalist by saying: “Many Pennsylvanians are under the impression that Arlen Specter might be a reliable pro-choice voice, but his record says otherwise. Pennsylvanians deserve a senator who considers being pro-choice a position of conviction, rather than a position of convenience.”

Ouch! Reading that, you have to sympathize a bit with Snarlin’ Arlen. You might well say that such a swipe at his character would be justified if you were talking about anything else, but it’s hard to argue that his stand on just about the only issue on which he has been consistent was merely a matter of convenience.

What’s NARAL’s motive? Is it belated payback for Specter’s roughing up of Anita Hill? Maybe. But according to its release, it’s the fact that Specter voted for Republican court nominees John Roberts and Samuel Alito and at one point voted, along with many Democrats, in favor of a ban on partial-birth abortion. But Specter’s record on court nominations has been anything but consistent, given his participation in the vicious attacks on Robert Bork in the 1980s, which pleased NARAL, and his vote in favor of the confirmation of Sonia Sotomayor last year.

But the real answer may be elsewhere in the statement, where Keenan claims, “Joe Sestak is the candidate who is best positioned to defeat an anti-choice opponent in the November general election.” Which is to say that she has read the polls, which show that Specter’s lead over his opponent has evaporated and that Sestak may be a tougher opponent for likely Republican nominee Pat Toomey. Now that he really needs them, Specter is finding that NARAL, like every other political entity, prefers backing likely winners to helping out old friends.

But just to show that ingratitude and extremism aren’t confined to the pro-choicers, the Philadelphia Inquirer reports that the long-shot challenge to Toomey in the Republican primary next week is also motivated by abortion. Activist Peg Luksik thinks that the former congressman isn’t sufficiently fanatic on the issue because despite his consistent pro-life record, he believes there should be exceptions to any potential ban on abortion in cases of rape or incest or to save the life of the mother. Luksik’s claim to fame is that 20 years ago, she won 46 percent of the vote in a failed attempt to deny a GOP gubernatorial nomination to Barbara Hafer, a pro-choice Republican. Since then, she twice ran as a third-party candidate for governor against Tom Ridge.

Toomey is a prohibitive favorite and doesn’t have much to worry about in the primary. But looking ahead to November, he does seem to have a firm grasp on the difference between running against Specter and running against Sestak. While claiming that either would energize the Republican base, the Inquirer quotes Toomey as summing up the contrast between the two in this way:

“If Joe Sestak wins the nomination, I do think it will be a much more substantive discussion about policy, whereas if it was Arlen Specter, it would be a series of personal, negative ads trying to smear character. That’s the way he’s always operated.”

Read Less




Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.