Are We Being Too Hard On John Roberts?

CE.com ^ | July 5th, 2012 | Ken Connor

[Salvation]

Are We Being Too Hard On John Roberts?

• Opinion
• July 5th, 2012
• Ken Connor

 

“Members of this court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.  Those decisions are entrusted to our nation’s 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.”

-Chief Justice John Roberts in NFIB vs. Sebelius

 

Conservatives are apoplectic that John Roberts, Chief Justice of the Supreme Court, sided with the liberal wing of the court in largely upholding the constitutionality of The Affordable Care Act (ACA).  Their rhetoric has been filled with invective and they have described Roberts as “a traitor to his philosophy” who is “forever stained in the eyes of Conservatives.” His opinion has been called “the worst kind of judicial activism” and characterized as “a 21^st century Dred Scott decision.”

You get the picture.  In joining the majority in upholding Obamacare, Roberts has become the Benedict Arnold of the Bench.

To my friends on the right, I say, “Enough with the hyperbole.  Take a breath.  Chill out!  Roberts is not guilty of the perfidy of which you accuse him and he has given us a great gift for the coming election.”

And before we go further, let’s make one thing clear.  In ascending to the Supreme Court, John Roberts did not take an oath to advance the cause of conservatism or the agenda of the Republican Party.  He did not agree to become a judicial activist for the Right. He took an oath to uphold the Constitution.  The role of the Court is to interpret the Constitution, and in the Obamacare decision, he has made a good faith, well-reasoned, carefully considered attempt to do just that.  The fact that we may not agree with the outcome he reached does not make him a traitor or some kind of a two-horned, one-eyed judicial activist.  Surely there is room for honest disagreement within conservative ranks.  And is charity not one of the virtues we extol?

 

Conservatives should take heart from Justice Roberts’ explication of Congress’ power under the Commerce Clause of the Constitution.  That clause has provided the pretext for an incredible expansion of the federal government into the lives of its citizens.  Roberts, however, dismantled the government’s argument that the ACA represented an appropriate exercise of power under the Commerce Clause and its kissing cousin, the Necessary and Proper Clause, which gives Congress the authority to do those things necessary and proper for carrying out its enumerated powers.

Rejecting the ACA’s individual mandate provision as an appropriate exercise of Congress’ authority to “regulate” commerce, Roberts ruled that a consumer’s “inactivity” in failing to purchase health insurance could not be equated with the “activity” of purchasing it.  In the absence of such commercial activity, Congress had nothing to regulate.  Additionally, Roberts ruled that Congress’ passage of the ACA was not a “proper” exercise of its authority under the Necessary and Proper Clause.  In so ruling, Roberts affirmed the importance of the Tenth Amendment and struck a blow for the rights of the states and their people to be free from unwarranted and unconstitutional intrusion by the federal government.

The real rub for conservatives is that Roberts found that Congress had the power under the Taxing and Spending Clause to enact the individual mandate required by the ACA and to financially penalize those who do not purchase health insurance under the new program.  In doing so, Roberts looked beyond the euphemistic form of the language Congress used to describe the consequences of failing to make such a purchase (“shared responsibility payment” and “penalty”) to the substance of those consequences.  He then called what he perceived to be a spade a “spade,” denominating it a “tax.”  In doing so, Roberts found that portion of the ACA to be a proper exercise of the Congress’ taxing authority, and therefore, constitutional.

In reaching his conclusion, Roberts acted in accordance with historical precedents which provide that when a statute is capable of two interpretations—one of which would result in the statute being unconstitutional and the other of which would result in the statute being constitutional—courts should indulge the interpretation which favors constitutionality.  In other words, courts should show deference to the people’s elected representatives and not be too eager to invalidate laws passed by them by declaring them unconstitutional.

Roberts also pointed out that there is a remedy for those who don’t like Obamacare, namely an election.  If people don’t like Obamacare, if they think it is a socialistic, job-killing, tax-hiking, economy-stifling program that America can’t afford, if they think it will degrade the quality of medical care in this country, they can throw the rascals out who passed it and elect a new set of rascals who will repeal it.  That’s what democracy is all about.

Elections have consequences, and John Roberts is absolutely right that it is not the role of the Court to protect the people from the consequences of their political choices.  That’s what judicial activists do.  They invalidate legislation based on whimsy and substitute their own fanciful ideas about what’s prudent for that of our elected representatives.  Judicial activism short-circuits the democratic process and puts power in the hands of a judicial oligarchy.  Roberts has not engaged in judicial activism.  In this case, he has left the power make change in the hands of the people.  So if you don’t like Obamacare, do something about it.  Stop whining and get off your duff and go to work to elect those who will repeal it.  And for goodness’ sake, get off the back of John Roberts.  He doesn’t deserve our derision.

 

Ken Connor is an attorney and co-author of “Sinful Silence: When Christians Neglect Their Civic Duty”  He is also Chairman of the Center for a Just Society.  For more articles and resources from Mr. Connor and the Center for a Just Society, go to www.centerforajustsociety.org

[Ken H]

TR: It seems that there is a coordinated effort underway by certain people who are trying to either defend or rehabilitate Roberts.

DSH: Yes, it is really quite obvious. The shills and the water-carriers are so inept, they can't even mask the fact that they have embarked on an obvious campaign.

_____________________________________________________________

I agree. I've seen several posters make note of it on other threads as well.

[I see my hands]

You may be confused.. it's not the boxes that are stupid, I am, get it?

[Conscience of a Conservative]

Among. My mistake, typing quickly, had started typing “between the majority and dissent..:”

[madison10]

No.

[philman_36]

HERE! @ [Page: S13830] (about 3/4 of the way down) Mr. BAUCUS. Mr. President, the bill before us is clearly an appropriate exercise of the commerce clause. We further believe Congress has power to enact this legislation pursuant to the taxing and spending powers. This bill does not violate the 10th amendment because it is an appropriate exercise of powers delegated to the United States, and because our bill fundamentally gives States the choice to participate in the exchanges themselves or, if they do not choose to do so, to allow the Federal Government to set up the exchanges fully within the provisions as interpreted by the Supreme Court of the 10th amendment.

I urge my colleagues to vote against the point of order.

[AZLiberty]

In an alternative reality, Roberts knew that a Supreme Court ruling would not deter Obama from implementing ObamaCare. When has Obama shown any respect to the Constitution? ObamaCare would simply morph into a giant executive order.

Roberts made it clear that it’s up to us to elect a different administration. And he laid the groundwork for a clear declaration of Constitutional contravention the moment the government actually tries to collect the tax, since the bill did not originate in the House. But only if we have an administration that respects the Constitution.

[Ken H]

Blame the voters who elected Obama, not Roberts for stepping aside and letting Obama do what a majority of our fellow Americans elected him to do, as ugly an uncomfortable as it is.

Question. In your opinion, was the Court's decision in keeping with the Constitution? Yes or No.

[Paladin2]

I'll have to reread the opinions closer.

A tax on inactivity seems just so wrong. Who is the master? The gov't or the people?

[Ken H]

Do you personally think that this decision is in keeping with the Constitution? Yes or no.

[philman_36]

Both his children are adopted.
Could his personal, private life been threaten???

I don't know and, frankly, I don't give a flying "you know what"!
I'm dealing with what is, not what might be.
A decision has been rendered. Period.
We have to deal with that decision.
We have to understand that decision and how it is to our advantage.

All this speculation as to why he "flipped" or "what do they have on him" is diverting people away from doing that very thing.

People are being emotionally led around by the nose with this @"2 Minute Hate" fest going on
instead of looking at the decision for themselves and coming to understand it.
Good Lord, even people who should know how the "2 minute hate" works are involved in doing it and somehow they don't even seem to realize that they're participating in it.

Love the decision or hate the decision people better get over it PDQ and figure out the best method of turning this against liberals and this administration.

[rbmillerjr]

Roberts sold out for his legacy.

Even the 4 who dissented told Roberts he was on his own.

This article is a rationalization and denial of the buyers’ remorse that the writer doesn’t want to accept.

For all of Roberts’ weighty judicial skills, he proved that when the chips are down, he’s a judicial lightweight and fairy.

Well, I guess for those who accepted McCain’s lack of tenacity on the campaign trail, we can surely accept conservative Justices voting conservative, except in the most critical cases.

I reject the argument that this is judicial restraint. It is the exact opposite. Roberts appears to have been flipped...not due to the constitutionality of the mandate and Bill, but due to “how the Court would appear” and ultimately Roberts’ own personal legacy.

Well, Chief Justice Roberts, you sure have solidified your legacy to this conservative and many others.

[norton]

This is about the 4th such piece I've read today that argues the same thing. It seems that there is a coordinated effort underway by certain people who are trying to either defend or rehabilitate Roberts.

I have a strong feeling that we are seeing a concerted effort to get the massses used to the idea that Obamacare is here to stay.

(And, we'll be the ones paying for it.)

[reagandemocrat]

Not as bad as Blackmun, but close.

[philman_36]

10:12:10 PM to 10:39:41 PM

It took me a whole 17 minutes to go back and refind that page after I read about it in the article the first time.
I didn't think I would have to go back and find it so I didn't really make a strong mental note of exactly where it was.

@The intent of the law was for it to not be a tax. That was argued in the House, in the Senate, and by the President.

I'm not trying to come down hard on you specifically, but statements just like yours tell me that people are speaking out on this without understanding at all what they're talking about.

Since I've shown your statement to be an outright falsehood would you care to amend your statement?

[Secret Agent Man]

Nope,hardly too hard, given what he’s just dome. Impeach and remove,/and then impeach and remove the four libs too.

[Bookwoman]

NO!!!!!!!!!

[pgkdan]

Not no but HELL NO!!!

[Nowhere Man]

You know, hope no one thinks I'm out of line but I have to get this off my chest. Seeing the photos of Mohammad Atta and Justice Roberts together, a though came to me. IMHO, Justice Roberts, with his ruling, is a lot more dangerous to the United States than even Atta ever was. Sure Atta, if you add in his accomplices, took 3000 American lives and even more if you add in the resulting wars, IIRC, close to 10,000 give or take. Still, that pales into comparison of the potential lives we could lose to ObumblesCare with the death panels and so on. Think about this way, when you think of Roe vs. Wade, there were 54.5 million abortions since 1973. That's close to the population of the UK or France when you think about it.

I don't deny the huge loss to people who lost love ones on 9/11 and/or the resulting wars, just pointing out the dangers we face where there a a good chance of even more loss of life could and would occur. I'm just saying that Justice Roberts will have blood on his hands.

[philman_36]

A better link...

@ S13830 Congressional Record

Mr. BAUCUS. Mr. President, our committee and the HELP Committee have given a lot of thought to the provisions in this legislation. We also gave a lot of thought to the constitutionality of the provisions—how they work and the interrelationship between the power of Congress and the States and what States will be doing, particularly under the commerce clause and the tax-and-spending powers of the Constitution. It is very strongly our considered judgment, and that of many constitutional scholars who have looked at these provisions—and many articles have been put in the Record—that clearly these provisions are constitutional. The commerce clause is constitutional, the tax-and-spending clause, and the provisions clearly are constitutional.
I yield back my time.
Third column.

13832...

Mr. BAUCUS. Mr. President, the bill before us is clearly an appropriate exercise of the commerce clause. We further believe Congress has power to enact this legislation pursuant to the taxing and spending powers. This bill does not violate the 10th amendment because it is an appropriate exercise of powers delegated to the United States, and because our bill fundamentally gives States the choice to participate in the exchanges themselves or, if they do not choose to do so, to allow the Federal Government to set up the exchanges fully within the provisions as interpreted by the Supreme Court of the 10th amendment.
I urge my colleagues to vote against the point of order.

[I see my hands]

You understand my post exactly.