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Finally, the irony of Roberts’s opinion must not go unnoticed. His opinion, which is the object of such conservative scorn, is in fact right out of the Antonin Scalia (who dissented) and Robert Bork playbook. (Hat tip to Donald Boudreaux for first bringing this to my attention.) Bork and Justice Scalia believe that unelected judges should not interfere with the elected branches of government except when Congress violates an express, narrowly construed right (essentially the ones in the Bill of Rights). Other interference is branded “judicial activism.” I once heard Justice Scalia say: “My job is not to strike down laws that are constitutional. My job is to strike down laws that are really unconstitutional.” He went on to say that the view that there are unenumerated rights (such as referred to in the Ninth Amendment) would bring the “downfall of the republic.”
Bork, whom Ronald Reagan tried to put on the Supreme Court, is beloved by conservatives for this philosophy, but when he was nominated the Cato Institute forcefully critiqued the Borkian philosophy, with people such as Stephen Macedo (The New Right versus the Constitution) and Randy Barnett arguing that Bork’s view turns the Constitution on its head, seeing in it a few islands of rights in a vast sea of government powers. In response, they argued that courts should work from a presumption of liberty and strike down legislative acts that violate broadly conceived rights, both enumerated or unenumerated. (See Barnett’s praise of Justice Kennedy’s opinion in Lawrence v. Texas.)
Clearly, Roberts wrote his opinion in the Bork/Scalia spirit—even if Scalia doesn’t like the outcome this time. (He’s been accused of occasional activism himself.) Quoting Hooper v. California, Roberts wrote, “[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” And he added, “Our permissive reading of these [delegated] powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders.”
Thus the path to the constitutional validation Obama was paved by conservative legal philosophy.
Sheldon Richman is editor of The Freeman, where this article originally appeared.