John Roberts Makes His Career Move

Out of relief and gratitude for his having saved Obamacare, he is being compared to John Marshall and Oliver Wendell Holmes.

Liberal commentators are burbling that his act of statesmanship has shown us the way to the sunny uplands of a new consensus.

If only Republicans will follow Roberts' bold and brave example, and agree to new revenues, the dark days of partisan acrimony and tea party intransigence could be behind us.

Yet imagine if Justice Stephen Breyer had crossed over from the liberal bench to join Antonin Scalia, Sam Alito, Clarence Thomas and Anthony Kennedy in striking down Obamacare. Those hailing John Roberts for his independence would be giving Breyer a public caning for desertion of principle.

Why did Roberts do it? Why did this respected conservative uphold what still seems to be a dictatorial seizure of power -- to order every citizen to buy health insurance or be punished and fined?

Congress can do this, wrote Roberts, because even if President Obama and his solicitor general insist the fine is not a tax, we can call it a tax:

"If a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. ... If the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress's constitutional power to tax."

Roberts is saying that if Congress, to stimulate the economy, orders every middle-class American to buy a new car or face a $5,000 fine, such a mandate is within its power.

Now, Congress can indeed offer tax credits for buying a new car. But if a man would prefer to bank his money and not buy a new car, can Congress order him to buy one -- and fine him if he refuses?

Clearly, the chief justice was searching for a way not to declare the individual mandate unconstitutional. But to do so, he had to go through the tortured reasoning of redefining as a tax what its author and its chief advocates have repeatedly insisted is not a tax.

As he wrote in his opinion: "We (the Court) possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

This is a sentiment many of us seek in a jurist in a republic: a disposition to defer to the elected branches to set policy and make law. But Roberts here raises a grave question -- about himself.

While it is not the job of the Supreme Court "to protect the people from the consequences of their political choices," it is the job of the Supreme Court to pass on the constitutionality of laws.

Did Roberts look at that individual mandate and conclude that it passed the constitutionality test? Or did he first decide that he did not want to be the chief justice responsible for destroying the altarpiece of the Obama presidency and sinking that presidency -- and then go searching for a rationale to do what he had already decided to do?

In the view of this writer, Roberts desperately does not want to seen by history as merely a competent but colorless member of the conservative bloc on the Supreme Court, another reliable vote in the Scalia camp. He does not want Anthony Kennedy, the swing justice, to be making history, while he is seen as a predictable conservative vote.

John Roberts aspires to be a man of history, to have this court known to historians as "the Roberts Court." And if there is to be a decisive vote in future great decisions, he wants that vote to be his.

He wants to be seen among the cognitive elite, in this capital city that voted 93-7 for Obama, as a large and independent thinker. And with this decision on Obamacare, for which he will be remembered, he has taken a great leap forward to establishing that new identity.

John Roberts likely has ahead of him a quarter of a century as chief justice. If he wants to be written of as another John Marshall or Oliver Wendell Holmes, and not Roger Taney, he must pay the price the city demands. If he does not wish to be remembered as a tea party justice, he must deliver the goods. And John Roberts just did.

Liberals will never again see him in the same light. Nor will his old comrades. To attain the first, John Roberts is willing to accept the second. He has made his decision. John Roberts is moving on up.

Again, we must rremember that it is "the People" who must determine the future of liberty. It is not the courts, nor the legislature, nor the executive branch--although each of those branches of "the People's" government seem to have deserted the Framers' passion for liberty as their primary motivation.

Under the Constitution's own provisions, "the People" are required to be involved in the process for changing the Constitution's protections.

Conservative constitutional scholars need to step forward to enlighten the citizenry on their role, according to the Founders' Constitution.

In the meantime, here are some words from that generation on the importance of "the People" and the States:

"I do not think it for the interest of the General Government itself, and still less of the Union at large, that the State governments should be so little respected as they have been. However, I dare say that in time all these as well as their central government, like the planets revolving round their common sun, acting and acted upon according to their respective weights and distances, will produce that beautiful equilibrium on which our Constitution is founded, and which I believe it will exhibit to the world in a degree of perfection, unexampled but in the planetary system itself. The enlightened statesman, therefore, will endeavor to preserve the weight and influence of every part, as too much given any member of it would destroy the general equilibrium." --Thomas Jefferson to Peregrine Fitzhugh, 1798. ME 10:3
"I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power." --Thomas Jefferson to William C. Jarvis, 1820. ME 15:278
"If Caesar had been as virtuous as he was daring and sagacious, what could he, even in the plenitude of his usurped power, have done to lead his fellow citizens into good government?... If their people indeed had been, like ourselves, enlightened, peaceable, and really free, the answer would be obvious. 'Restore independence to all your foreign conquests, relieve Italy from the government of the rabble of Rome, consult it as a nation entitled to self-government, and do its will.' But steeped in corruption, vice and venality, as the whole nation was,... what could even Cicero, Cato, Brutus have done, had it been referred to them to establish a good government for their country?... No government can continue good but under the control of the people; and their people were so demoralized and depraved as to be incapable of exercising a wholesome control. Their reformation then was to be taken up ab incunabulis. Their minds were to be informed by education what is right and what wrong; to be encouraged in habits of virtue and deterred from those of vice by the dread of punishments proportioned, indeed, but irremissible; in all cases, to follow truth as the only safe guide, and to eschew error, which bewilders us in one false consequence after another in endless succession. These are the inculcations necessary to render the people a sure basis for the structure of order and good government. . . . --Thomas Jefferson to John Adams, 1819. ME 15:233
"An enlightened people, and an energetic public opinion... will control and enchain the aristocratic spirit of the government." --Thomas Jefferson to Chevalier de Ouis, 1814. ME 14:130
"I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power." --Thomas Jefferson to William C. Jarvis, 1820.
"Every government degenerates when trusted to the rulers of the people alone. The people themselves, therefore, are its only safe depositories. And to render even them safe, their minds must be improved to a certain degree." --Thomas Jefferson: Notes on Virginia, 1782.
"Educate and inform the whole mass of the people. Enable them to see that it is their interest to preserve peace and order, and they will preserve them. And it requires no very high degree of education to convince them of this. They are the only sure reliance for the preservation of our liberty." --Thomas Jefferson to James Madison, 1787.
"Whenever the people are well-informed, they can be trusted with their own government." --Thomas Jefferson to Richard Price, 1789.
"Whenever things get so far wrong as to attract their notice, the people, if well informed, may be relied on to set them to rights." --Thomas Jefferson to Richard Price, 1789.
From James Madison:
"Although all men are born free, and all nations might be so, yet too true it is, that slavery has been the general lot of the human race. Ignorant – they have been cheated; asleep – they have been surprised; divided – the yoke has been forced upon them. But what is the lesson?... The people ought to be enlightened, to be awakened, to be united, that after establishing a government they should watch over it."
"A well-instructed people alone can be permanently a free people."
"I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations."
"To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea."

"Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court even can do much to help it." - Judge Learned Hand

As bad as this decision was all by itself, what makes it more troubling was that it followed another bad decision on immigration where Roberts joined the liberals (and Kennedy) in striking down most of the perfectly reasonable and Constitutional Arizona law.

So yeah, who is the real Roberts? The one who got it right on partial birth abortion and the Second Amendment, or the one we’ve seen the past few weeks with immigration and Obamacare? Is the past few weeks an aberration, or is it a sign that Roberts is evolving and ‘growing’ in office?

We won’t have to wait too long. The next term should see a new challenge to racial preferences in college admissions, and a Voting Rights Act case (I don’t know the specifics of this one). On racial preferences, if Kennedy holds to his previous ruling, then Roberts will decide that case? What will he do?

And it can’t be much longer before our masters on the Sup Court take up a definitive marriage case, and decide whether or not we rubes can define it, or instead to invent a new right for homosexuals to have their unions granted state recognition. Up until now I had thought (if the current Court is still in place) that Kennedy would decide this issue, and I thought he would go back to his absurd, liberal, ‘sweet mystery of life’ jurisprudence and impose recognition of gay unions on the entire nation. Now, I think there is a very good possibility that it will be a 6-3 decision with both Kennedy and Roberts joining the liberals. But even if Kennedy gets is right, I fear Roberts would still join the liberals for a 5-4 decision.

We’ll see.

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