Judicial Betrayal (Thomas Sowell on John Roberts)

Creators Syndicate ^ | July 3, 2012 | Thomas Sowell

[jazusamo]

Betrayal is hard to take, whether in our personal lives or in the political life of the nation. Yet there are people in Washington — too often, Republicans — who start living in the Beltway atmosphere, and start forgetting those hundreds of millions of Americans beyond the Beltway who trusted them to do right by them, to use their wisdom instead of their cleverness. President Bush 41 epitomized these betrayals when he broke his "read my lips, no new taxes" pledge. He paid the price when he quickly went from high approval ratings as president to someone defeated for reelection by a little known governor from Arkansas. Chief Justice John Roberts need fear no such fate because he has lifetime tenure on the Supreme Court. But conscience can be a more implacable and inescapable punisher — and should be. The Chief Justice probably made as good a case as could be made for upholding the constitutionality of ObamaCare by defining one of its key features as a "tax." The legislation didn't call it a tax and Chief Justice Roberts admitted that this might not be the most "natural" reading of the law. But he fell back on the long-standing principle of judicial interpretation that the courts should not declare a law unconstitutional if it can be reasonably read in a way that would make it constitutional, out of "deference" to the legislative branch of government. But this question, like so many questions in life, is a matter of degree. How far do you bend over backwards to avoid the obvious, that ObamaCare was an unprecedented extension of federal power over the lives of 300 million Americans today and of generations yet unborn? These are the people that Chief Justice Roberts betrayed when he declared constitutional something that is nowhere authorized in the Constitution of the United States. John Roberts is no doubt a brainy man, and that seems to carry a lot of weight among the intelligentsia — despite glaring lessons from history, showing very brainy men creating everything from absurdities to catastrophes. Few of the great tragedies of history were created by the village idiot, and many by the village genius. One of the Chief Justice's admirers said that when others are playing checkers, he is playing chess. How much consolation that will be as a footnote to the story of the decline of individual freedom in America, and the wrecking of the best medical care in the world, is another story. There are many speculations as to why Chief Justice Roberts did what he did, some attributing noble and far-sighted reasons, and others attributing petty and short-sighted reasons, including personal vanity. But all of that is ultimately irrelevant. What he did was betray his oath to be faithful to the Constitution of the United States. Who he betrayed were the hundreds of millions of Americans — past, present and future — whole generations in the past who have fought and died for a freedom that he has put in jeopardy, in a moment of intellectual inspiration and moral forgetfulness, 300 million Americans today whose lives are to be regimented by Washington bureaucrats, and generations yet unborn who may never know the individual freedoms that their ancestors took for granted. Some claim that Chief Justice Roberts did what he did to save the Supreme Court as an institution from the wrath — and retaliation — of those in Congress who have been railing against Justices who invalidate the laws they have passed. Many in the media and in academia have joined the shrill chorus of those who claim that the Supreme Court does not show proper "deference" to the legislative branch of government. But what does the Bill of Rights seek to protect the ordinary citizen from? The government! To defer to those who expand government power beyond its constitutional limits is to betray those whose freedom depends on the Bill of Rights. Similar reasoning was used back in the 1970s to justify the Federal Reserve's inflationary policies. Otherwise, it was said, Congress would destroy the Fed's independence, as it can also change the courts' jurisdiction. But is it better for an institution to undermine its own independence, and freedom along with it, while forfeiting the trust of the people in the process?

[In Maryland]

I'd like to see Mr. Sowell jump on the hypocrisy of the court in finding it a tax. For example, from page 20 of the oral arguments on Monday:

"JUSTICE SOTOMAYOR: Here we have one where the Congress is not denominating it a -- as a tax; it's denominating it as a penalty.

MR. LONG: That's -- that's absolutely right, and that's obviously why -- if it were called a tax, there would be absolutely no question that the Anti-Injunction Act applies.

JUSTICE SOTOMAYOR: Absolutely."

If the anti-injunction act applies, the suit is out of order and should NOT have been decided! The "wise Latina" admitted as much, but still choose to rule while also calling it a tax!

[In Maryland]

"I am curious, however, if ObaMao's side even argued that it was a tax, in direct defiance of what they did when the law was implemented.

Yes, they did - as a secondary argument. It lead to the following amusing exchange on the first day of oral arguments (pp 31-32 of the transcript):

"JUSTICE ALITO: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax.

Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

GENERAL VERRILLI: No, Justice Alito,... "

But that is precisely what the court did in this case!

[In Maryland]

More hypocrisy from the orals (emphasis added):

"JUSTICE GINSBURG: But the question that I asked you is, if you're right that this penalty is not covered by section 7421, if you're right about that, why should we deal with the jurisdictional question at all? Because this statute, correct, the way you're reading -read it, doesn't involve a tax that's subject to the Anti-Injunction Act.

GENERAL VERRILLI: Yes, that is exactly our position.

[GVnana]

I'm going to post a theory. Robert's opinion isn't just a betrayal, it's a coup.

The chief justice of SCOTUS writes an opinion that has all the coherence of drool, and the only lasting effect of the opinion is keeping ObamaCare alive. This Roberts does despite the scathing dissent of his peers.

We know Obama has ridiculed Roberts and the entire court in SOTU addresses, and more recently with veiled threats on TV. Roberts caved. It never should have happened, but it did.

Michael Savage has pointed out that Roberts is on anti-seizure medication, and these medications are known to have negative effects on cognitive ability. I suppose political correctness prevented this from becoming an issue during Robert's appointment. Too bad. It should have been a big red flag.

Obama people actually have access to him after the hearing -- another idiocy, and highly suspect ethics -- and convince Roberts that he and the country will suffer (more threats) if a 5-4 decision comes down. (Oh no! Not another Bush v. Gore! "You will be a pariah, and your court will be viewed with distain.")

And Roberts becomes a completely ineffectual dupe.

Who rules America?

[AuH2ORepublican]

The Supremacy Clause was not an issue in those cases; no one disputes that laws adopted by Congress are the Supreme Laws of the Land, and have the effect of preempting any contrary state law. The issue was whether Congress was authorized to approve those laws in the first place.

Scalia voted with the majority in Lopez and has been solid regarding the Commerce Clause. The dissent in the Obamacare case does a pretty good job distinguishing Raich. In Raich, the federal government could not permit marijuana to be grown for intrastate consumption without it defeating its policy to prohibit sales of marijuana in interstate commerce, since such marijuana was indistinguishable from marijuana that would be sold in interstate commerce; the analogy used was how the federal government could ban the sale of “hunting trophies” from protected species even when the animal had been hunted prior to the species being protected, since one could not determine whether a “trophy” came from an animal hunted pre- or post-protection. There is no doubt that marijuana is sold in interstate commerce, and for the reasons stated above it was appropriate for the federal government to ban ints production.

Regarding the use of the taxing power, Scalia voted (as you noted) with the majority in SD v. Dole, where the Court held that withholding a mere 5% of highway funds from states that did not raise the drinking age was not coercion. I would have dissented, but had Congress offered an extra 5% to states that had a 21-year-old drinking age (instead of taking away 5% from those that didn’t) it would have been a more difficult case; I guess that Scalia thought that either way the inducement/penalty was trivial enough that it didn’t violate the states’ rights.

[Whenifhow]

Joe Biden Tells Federal Judge He Will Have to Rule on Implanted Microchips (Roberts)

http://www.freerepublic.com/focus/f-bloggers/2902438/posts

[1010RD]

To defer to those who expand government power beyond its constitutional limits is to betray those whose freedom depends on the Bill of Rights.

Legislative overreach is a topic every FReeper should be familiar with. The idea that an elected body may do whatever it wants and the results will be fair/moral is absurd on its face.

[Jacquerie]

Our nation has suffered from too much democracy, i.e. legislative tyranny in times past.

During the Critical Period between the Revolutionary War and the Constitution, our young republics ran wild with popular, democratic legislatures. While the people had not refined their methods to legally steal from their neighbors outright, they got their legislators to pass laws that screwed creditors, confiscated property, inflated money, enacted ex-post facto laws, and generally impaired contracts to favor debtors.

These faults were corrected in the Constitution so often derided at this forum.

Similarly, we suffer today from too much democracy. For 99 years the Senate has not served as the lid on the House of Representatives it was designed to be. No, our Senators are vote grubbers like the Reps, only worse, because they have six year terms and imagine themselves minor gods.

Our Framers got it right in 1787 and the 16th, 17th amendments have been our undoing.

The American Revolution is dead.

[Flotsam_Jetsome]

"I'm going to post a theory. Robert's opinion isn't just a betrayal, it's a coup."

It's been a coup since Roberts "flubbed" the swearing in of a man who to this day has not demonstrably qualified for office, and then supposedly re-administered the oath later, behind closed doors.

It may have been largely bloodless (so far), but a coup has absolutely taken place, IMHO.

Jaz- Please add me to your Dr. Sowell Ping list. The man's a national treasure.

[jazusamo]

Amen to that, F_J.

Welcome to the Sowell ping list, you’re on. FRegards.

[BigEdLB]

"Few of the great tragedies of history were created by the village idiot, and many by the village genius. "
Thomas Sowell 2012

Ouch... That has got to hurt... Even in far away Malta...

[BigEdLB]

Another thought re: Village Idiot - So far, SloJo Biden, our own village idiot, has only created entertaining sound bites, and no tragedies. I will stand up for my point to the end...

[Seaplaner]

Mister John Roberts, if you read no other comment regarding your betrayal of America, please at least read the following...

(My takeaway line from Dr. Sowell's piece)...

But conscience can be a more implacable and inescapable punisher — and should be.

[tsowellfan]

Great article as usual!

I suspect Roberts was paying Obama back for the executive order he signed allowing children bought into the United States illegally to have Amnesty. But that's beside the point.

[Theodore R.]

The aftershocks of the GWB earthquake continue. Notice GWB hasn’t said a peep about his former nominee. Even ol’ Ike spoke out against Earl Warren liberalism a time or two, not that it made any difference of course.

[Theodore R.]

Why do some think that Roberts’ children are illegals?

[Daffynition]

I just happened to read this excellent Sowell piece on another site. Once again, he is spot on! Simply, Roberts betrayed his oath of office. Many of the *pundit* comments in the wake of the Roberts decision are irrelevant. I pray....God Bless America!

[alrea]

ObaMao

wow. funny & scary.

[stockpirate]

I no longer have any respect fo rthe USSC, or any US court for that matter. None follow the US Constituion, all are geared twowards the further enslavement of the American people.

If we take the WH and congress one of the first orders of business is the impeachment of Justice Roberts.

[stockpirate]

Add me to the ping list too please.