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

[Nowhere Man]

Obama campaigned on enacting Obamacare. Obama won the election. Obama enacted Obamacare. Gotta give the guy credit, he did what he said he was going to do.

True, both him and his partners in crime, Pelosi and Reid, they fought like street fighters with the intent to win while many on our side fought by the Marquis of Queensbury rules and lost. We need to be like Rocky Balboa and take the fight back to the and win.

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.

We got a large number of people who are willing to be lead like sheep, womb to the tomb social security and let The Man decide things for them. We were talking about this at work. They are like the carp at Pymatuning Lake in Northwest PA, you see millions of them line up and gasp their mouths for people to feed then free bread and food. It is so massive, even the ducks and geese walk on the fish. As long as you have people feeding them, they will be there waiting and expecting their food instead of going out in the lake to look for it.

[Pikachu_Dad]

No, we are not. He screwed up.

[Ezekiel]

Compare:

SOL waves RED FLAG WARNING on 23 Aug 2001

Obama writes RED WARNING on [RED] FLAG Day, @ 1WTC, 14 June 2012

Obama's "We" is not "We the People", it's "We the destroyers, usurpers, illegals, deadbeats, MUSLIMS, degenerates, IRS, Pelosi and her ilk in Congress and the rest of government, including 5/9 of the USSC"

IOW, Amalek.

[NVDave]

No.

Roberts will deserve the infamy that is now his.

[Last Dakotan]

Who is Ken?

[gortklattu]

Weren’t there other justices involved in this mess? The problem is bigger than Roberts; target your criticism appropriately.

[howlinhound]

“Who knows, he might have gotten a call from some people from Chicago.”

..informing him they have photos of him with a goat..

[dragonblustar]

Being hard on Roberts?

He could be tossed in a jail cell with a homo gimp wearing leather and studs named Fist’m & Bang’m who has been juiced on redbull and Viagra and it still wouldn’t be hard enough on Roberts.

Just saying....

[Sivad]

What Roberts did was to allow the Democrats to pass a huge
tax hike without having to sell it to the American people as such.
That is the LEAST that he did wrong and it is unforgivable.

[BuckeyeTexan]

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

[nerdgirl]

I agree with the essence of this article. John Roberts is not the demon here; Obama is.

[AZLiberty]

No, it’s not Constitutional, but neither is the Department of Education. Our masters don’t seem to care.

[dadfly]

wow. what i tried to post there.

the fact that he is a lawyer makes his opinion unsurprising. however:

1. this ruling does nothing to restore or protect the commerce clause. wickard v. filburn still rules the day and *none* of the leftist political justices signed on to robert’s opinon. the vote not withstanding, he was writing entirely for himself against the other 8.

2. this ruling lets stand the principle that the federal government can force any living individual citizen to buy a private sector product it deems necessary for the “general welfare” (a phrase in an introductory clause with no limiting function that leftists commonly use to justify their false belief in a “living, breathing” constitution. in fact i believe that roberts actually cited that introductory phrase in his opinion. stunning). show me the enumerated power in the constitution that allows this. show me the founder or framer expressing this federal interpretation of power in the constitution (which express purpose was to limit federal power to the absolute minimum to protect the lives, and private property of states and individual citizens from external threats, other states and criminal individuals). this ruling *creates* a whole new federal power out of whole cloth. how does that square with the fact that the constitution was to hold federal power constant at the level established in 1789 with the only additions being further amendments?

3. finally, the sheer lawlessness of a judge rewriting a statute (substituting an new and itself unconstitutional catagory of tax for a penalty) is something that should demand immediate impeachment. no definition of justice under the constitution allows a judge to make up law on the spot in a constitutional republic. that act is logically excluded from a constitution that holds federal power constant. also, to continue with my refutation of the article above. rewriting a law is not taking the difference between constitutional or unconstitutional interpretation. that implies that an existing law is ambiguous. no, this is tyranny. and roberts is unmasked as a leftist. pure and simple.

[FastCoyote]

It’s a dishonest ruling. When te Supreme Court has to employ subterfuge instead of plain English, you know we are in trouble.

[supercat]

I fail to understand how Roberts could decide that the “Personal Mandate” is a tax when the case was not argued by the Obama’s lawyers in that way.

Some bad Supreme Court precedent has come from decisions where one side failed to make the best arguments, with the consequence that the Court issued a decision which effectively foreclosed the argument that was not made (because the side failing to make it lost), or else issued a decision based on a totally fallacious argument (because the court realized that the side that made the argument should probably have won for other reasons). What the Court should do in such cases, IMHO, would be to offer up their evaluation of the arguments made thus far, and inform both sides of what better arguments would be. Some people might interpret such behavior as being a sign of "bias", but having the Supreme Court tell the side that should probably win to make the right argument so it can win, would be far better than letting that side win with a bad argument.

[cynwoody]

Chief Justice Johnny's on vacation teaching a course on Malta hooking up with one of his law school buddies, Richard Lazarus.

Here they were on the Vineyard back in the eighties:

John Roberts, Don Scherer, Richard Lazarus
Martha's Vineyard, 1980's

Wonder how the climate is on Malta this time of year?

http://www.cile.edu/malta2012final2sm.pdf

Chief Justice Roberts and Professor Richard Lazarus will teach United States Supreme Court in Historical Perspective for one credit.

Anyone know who all might have accompanied the Chief Justice on his Malta vacation gig? Any pics of the nuclear family extant?

[little jeremiah]

I read that he went to Malta without wifey and kiddies.

Maybe on this thread, or someone there knows:

http://www.freerepublic.com/focus/f-news/2902707/posts

[Captain Beyond]

Hell To The NO!!!! This bitch dog should be forced to resigned in disgrace and made an example of for future justices.

[antceecee]

No. Where’s the tar and feathers????

[Rashputin]

Didn't King Barry appoint two of the Justices who voted on this?

Before even getting to the arguments, by any reasonable interpretation of the rules shouldn't only eight Justices have been hearing this to begin with?

Who didn't know that while King Barry was sure to make horrible court appointments, McCain only may have made bad appointments?

Roberts took the most narrow view he could in keeping with precedent but did make sure it is clearly a tax which means the entire law is illegal on other grounds.

When you elect a sack of crap to be President, that sack of crap, appoints Justices, and Supreme Court decisions therefore always hinge on a single vote, the problem isn't primarily the single vote that decides matters in any given case. It's the millions of finger pointing folks, a good many of whom sat out the last election because they were too pure to vote for McCain, who won't get in the trenches and take over the Vichy Republican Party the way the fascists took over the Democrat Party.

People who refuse to lower themselves to even bothering to vote in order to try and avoid the worst case situation of having someone like King Barry appoint Justices aren't going to do what it takes to repeal the law even if it had been ruled unconstitutional. We have entire bureaucracies that are unconstitutional and those are going strong, so why should a single Justice be held responsible for agreeing with the very same people now raising hell by stating that the Court shouldn't usurp the authority of Congress unless absolutely necessary?

Was it absolutely necessary in this case? That's an entirely different debate and needs to start with why anyone expects a different situation than the mess we're in after 17th Amendment totally destroyed the system of checks and balances that the Founders put in place.

Lynch Roberts, burn him at the stake, whatever you like, and whatever makes you feel better. Just don't don't pretend that would make any difference unless the machinery that passed BarryCare in the first place is cleaned out In fact, it's just lending aid and comfort to your enemies who will get to decide who replaces Roberts.

JMHO