Posted on 06/29/2012 7:16:49 AM PDT by SeekAndFind
After Bush v. Gore and Citizens United, many despaired that the Supreme Court would be able to salvage its reputation as a politically neutral arbiter.
As the Senate was considering his nomination to become this nation's 17th chief justice, John Roberts—once a star pupil in my constitutional law class—famously compared the role of a judge with that of an umpire, just calling the balls and strikes. In many respects, that analogy is a deeply flawed one. Constitutional rules are not black and white; there are many shades of grey in between, and it’s up to our highest court both to define the strike zone and to interpret the rules themselves. It is simply unrealistic to say that judges can decide every case by mechanically applying a rigid algorithm. If they could, we wouldn’t need nine justices on our highest court and could probably program computers to do their work.
In one respect, however, the analogy is a sound one. Umpires should not care who wins: the home team or the visitors. So, too, judges should not care who wins: Republicans or Democrats.
That ideal of neutrality, many Americans believed, was shattered in Bush v. Gore. Cynics suggested that the court's 5–4 decision to award the presidency to George W. Bush was more a matter of politics than law. Judges, a lot of people concluded, were rooting for one of the teams. Having argued and lost that case, I wasn’t personally convinced that things were quite that bad, but what counted more in the long run was that the public was.
The court's 2010 decision in Citizens United v. Federal Election Commission, which unleashed a torrent of corporate and eccentric billionaire expenditures on politics, only worsened the problem, turning wealth and power into engines of self-replication through the machinery of political contributions: in the ruling’s wake, those with political power have taken on a lopsided indebtedness to those with financial influence.
But today, Chief Justice Roberts has done much to repair the enormous damage done to the Court’s reputation by Bush v. Gore and exacerbated by Citizens United. The Supreme Court's precedents clearly establish that the individual mandate, which doesn’t literally force anyone to purchase health insurance but simply adjusts the income-tax liability of those who don’t, can be sustained as an exercise of Congress's indisputably broad power to impose taxes. By faithfully applying those precedents—regardless of whatever personal distaste he may have had for the law he upheld—the chief justice helped restore Americans' confidence in the political neutrality of their highest court.
That is no small achievement. It is in some ways comparable to what our greatest chief justice, John Marshall, achieved in his landmark 19th-century rulings in Marbury v. Madison and McCulloch v. Maryland. Marbury established the power of the Supreme Court to sit in judgment on the constitutionality of the actions of the other political branches, and McCulloch established the breadth of the political authority entrusted to those branches by the provisions of the Constitution.
As Alexander Hamilton famously said in Federalist No. 78, the Supreme Court has no control over "either the sword or the purse; no direction either of the strength or of the wealth of the society." Its only real power is the power of reason and persuasion, and it is the public that is the ultimate judge of what counts as persuasive. The court depends on its public legitimacy for the efficacy of its decisions. By upholding the mandate, the chief justice reinforced that legitimacy, for he vividly demonstrated that—not unlike a good umpire—he is committed to reaching the correct decision regardless of which side wins.
The result of this case—and the path along which the court moved in reaching it—perhaps comes as a surprise to many observers. But it shouldn’t. During the oral arguments, the chief justice made it clear to anyone who was willing to listen with an open mind that he was inclined to view the mandate as a tax. I had also taken that view in a 2011 Boston Globe editorial, in which I argued: "[T]his law doesn’t literally force anybody to do anything; it just increases the tax liability of those who refuse to buy insurance.” The chief justice evidently saw it much the same way; at oral argument, he mused: “You know, buy insurance or else. Or else what? Or else nothing”—nothing, that is, except a modest increase in one's tax liability, an increase so small that in most instances it would be cheaper for the individual to pay the added tax than to comply with the supposed “mandate.”
Of course, what the court got right should not obscure what it got wrong. The chief justice concluded—unnecessarily, in light of his resolution of the tax power issue—that the mandate could not be sustained under the Commerce Clause, either taken on its own or augmented by the Necessary and Proper Clause. The chief justice reasoned that, while the Constitution authorizes Congress to regulate commercial activity, it does not permit the regulation of commercial inactivity.
What is the source of this curious distinction? According to the chief justice, the difference "between doing something and doing nothing would not have been lost on the Framers, who were 'practical statesmen,' not metaphysical philosophers." That argument gets it exactly backward: the idea that "activity" and "inactivity" are fundamentally different seems to be more metaphysical than practical, not the other way around. In any event, the chief justice overlooked the inconvenient fact that the framing generation actually enacted a bevy of mandates. In 1792, for example, no less a founder than President George Washington signed a law mandating that every able-bodied man buy firearms. As "practical statesmen," the Framers obviously recognized that the good of the nation sometimes called upon Congress to require people to purchase things, even when it might be theoretically possible for the government to make the purchases for them.
Whether the chief justice's unnecessary disquisition on the Commerce Clause will have a long-term effect on Supreme Court doctrine—and an effect that I, at least, would regard as deleterious in a world that demands broad national legislative power to cope with national economic problems—plainly remains to be seen. Much depends on which justices the next president puts on the bench, and thus, in no small part, on just who that president is.
For now, however, this Chief Justice should be roundly applauded for his statesmanlike decision to uphold a law that many in his party, and many who share his ideology, not only deeply dislike but also genuinely believe to be pernicious—despite the fact that the law’s basic design is one that can be directly traced to the work of those very politicians.
That judicial decision, one that would not have been possible without the position formulated and the vote taken and the reasoning provided by Chief Justice John Roberts, will do much to restore and promote the institutional legitimacy of the court he now leads.
That court exists in a system of government that depends deeply on a publicly trusted and politically independent judicial branch to define and police the boundaries of that system’s architecture, and to protect the rights of those that the system itself (or temporary majorities of the electorate) might otherwise oppress.
Laurence Tribe is a University Professor and a Professor of Constitutional Law at Harvard, has argued 35 cases in the Supreme Court, and taught constitutional law at Harvard both to President Obama and to Chief Justice Roberts. Tribe was the litigant for Gore in the Bush vs Gore case in 2000.
Sorry Larry. I’m not buying it. This was NOT neutrality in action. This was legislating from the bench by turning something that was not a tax into being A TAX! Roberts manipulated the bill to force it into being “constitutional”.
FULT!
The left is throwing up cover for Roberts. I am not buying it. Roberts has a job to do for me and he did not do it.
He’s convicted plagiarist!! Nothing more, nothing less. His clerks wrote his books, just like Roberts’s liberal clerks wrote his. The rotten apple doesn’t fall far from the poisoned tree!
The first ruling that stopped Florida from changing election laws on the fly was 9-0.
I wonder just how long the leftist TRIBE will be celebrating when these mutated chickens come to roost?
This piece of contorted judicial activism will resonate for a long time and not in the tune expected. Unexpected consequences are there for the bold to pick.
That is the whole point. Roberts painted the dimocrats into a corner. Now they have to defend a TAX on everyone.
He did you a favor. (In a backhanded sort of way, bu making EVERYONE pay a tax. Who will get blamed? The dimocrats and Obama becausethey are the author of this unwholesome legislation.
It’s not going to happen, believe me. There are too many legal hoops for them still to jump through.
Neutrality? It was an unforgivable act of pure evil. Roberts surprised us by siding with evil, while Kennedy sided with the forces of liberty. There is no “neutrality” in the battle between freedom and slavery.
Neutrality in defense of the Constitution is an interesting concept, and it leaves me wondering if this professor would praise neutrality had the liberal justices betrayed their politics.
I don't respect any of his other opinions either.
“Neutral” means the same thing as “bi-partisan” to the media - do things the Democrats’ way. I wouldn’t even give this bucket of whitewash the time it takes to dismantle it.
Decisions pleasing the left = "neutral"
Decisions pleasing the right="politicized"
How anyone take this faux scholar seriously is beyond me.
Tribe is a HACK who believes his verbose drivel can mask the fact that the 4 mindless robots on the left of the Court are NEVER neutral on the big ticket progressivee issues. He is dishonest in his praise but the synaptically challenged on the Left will lap it up.
When has a liberal court ever appeared neutral or above the fray? 9th circuit? Anyone? Anyone?
That would be my point. When has the liberal side of the court EVER sided with the conservative side? It has never happened. On issues like this one, they are in solidarity and we have a squishy conservative who wanted to appear to be neutral.
This was the time to call Obamacare what is was; a huge unprecedented federal power grab with mandates handed down from Washington. I will have none of it.
Roberts sold the Constitution down the river.
Sure Tribe, that’s what the law is about...appearing fair to a certain segment of the population i.e. liberals. If it doesn’t appear fair to libs, no matter the constitutionality of it, it’s not right...am I reading you correctly Larry? Just imagine conservatives trying to use that line on liberal justices. “Hey, lib justices...that stupid decision doesn’t appear fair to us.” They’d be laughing at you until the cows came home.
YOUR kids and grandkids are going to pay for this monstrosity MUCH more than your protected, pampered academic ass, Larry.
I take great solace in the small consolation that the descendents of useless, mouthy, verbose Communists are going to get hammered just as much as the rest of us.
Laurence Tribe you have mush for brains
Chalk up another column the liberal Tribe would never have written if, say, Sotomayor had joined the conservatives to quash Mengelecare. Tribe obviously thinks that only “Republican” justices are “political”. In other words, this guy believes that if the vote is 5 - 4 and conservatives win the day, then only the “5” part of that ruling is “political”. Only the liberal rat contingent weighs the law against the Constitution and arrives at a proper ruling.
Anyway, the ironic thing about Tribe is that he never had a chance to be a rat nominee to the Supreme Court. In fact, I doubt any straight white man will ever again be nominated for the Supreme Court by a rat president. I would hope Tribe eventually came to understand that, yet there he is - - still a liberal rat.
What a self-important Harvard egghead. And when has Larry noticed the leftists on the court showing ‘neutrality’ on major, controversial cases?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.