Election 2012

Fury at Chief Justice John Roberts Is Misplaced

Lawyers and judges alone can't preserve Americans' freedoms.

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Conservative fury at the chief justice of the United States, John Roberts, for the Supreme Court ruling declining to strike down the bulk of ObamaCare is misplaced.

Some of the more perfervid criticism makes it sound like the law is actually the fault of the chief justice, who merely declined to overrule most of the law, rather than the responsibility of President Obama, Senate Majority Leader Harry Reid, and the then-speaker of the House, Nancy Pelosi. As Roberts himself wrote, "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 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."

On some broader level, the whole episode points to the risks of the way in which the conservative movement, including the libertarian wing of it, has been overrun by lawyers in a less than entirely healthy way.

This, as told most usefully by John Miller in his book A Gift Of Freedom: How The John M. Olin Foundation Changed America, is in part a great success story. Millions of dollars in grants from conservative philanthropists funded the Federalist Society and law-and-economics programs at American law schools, producing cadres of free-market-minded young constitutional lawyers who could progress along a well-defined career ladder of judicial clerkships and jobs in both private firms and, when it was in Republican hands, the Justice Department.

The presence of all these brainy right-leaning lawyers was not without its drawbacks, however. There are many problems with ObamaCare—it's a huge tax increase, it's a redistribution of wealth, it increases the size of government, it's an overly complex exercise in central planning, it breaks Barack Obama's campaign promises, its implementation is timed so as to avoid electoral responsibility, it's a distraction from higher priority issues, it's unpopular with voters, it's bad for the economy. But in part because of the influence of all those lawyers, the conservative movement, at least for public discussion purposes, focused its energy for the past year or so on one main line of attack: the idea that the ObamaCare law is unconstitutional.

The lawyers turned out to be correct. According to seven justices of the Court, including former Edward Kennedy aide Stephen Breyer and former Obama solicitor general Elena Kagan, the penalty the law imposed on states in connection with a mandate to expand the Medicaid program was unconstitutional. And according to five of the nine justices, Congress lacked the power under the Commerce clause to impose an individual mandate.

But after the ruling, ObamaCare's opponents are still left with the challenge of overturning the law, which may be bad policy even if it is largely legal under the Constitution. That will be a political and public policy battle more than a legal one, and winning it is going to require conservative-leaning health care experts like James CaprettaSally PipesJohn Goodman, and the dean of Harvard Medical School, Dr. Jeffrey Flier, more than the legal eagles like Randy Barnett and Theodore Olson who pressed the court fight.

It is also going to require politicians and public policy intellectuals on the right of center who are willing to act on principle. Remember, during the George W. Bush administration, the total government share of health care spending in America grew to 45.3% in 2007 from 42.7% during 2000, the last year of the Clinton administration. Total federal, state, and local government health spending in America grew to $1,036 billion in 2007 from $597 billion in 2000. Part of that was driven by a new prescription drug benefit in Medicare that was welcomed by the pharmaceutical industry, which helps fund some of the right-of-center politicians and think tanks.

Some of our finest politicians, from John Adams to Abraham Lincoln to Franklin Roosevelt, have been lawyers. It's almost never a bad thing to get a reminder that the Constitution created a federal government with limited powers. But anyone who thought that America was going to be rescued from ObamaCare by lawyers or judges turns out to have been wrong. That is a job that will require not only lawyers but doctors, businessmen, politicians, and the American voters.

Ira Stoll is editor of FutureOfCapitalism.com and author of Samuel Adams: A Life

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80 responses to “Fury at Chief Justice John Roberts Is Misplaced

  1. So the Justices can’t make “policy judgements,” but they can “interpret” policies into completely different things, like interpreting a penalty as a tax.

    I smell bullshit.

    1. Now added to my short list of Reason writers who need retirement, along with Cathy Young.

    2. Yet another Roberts apologist (and Reason author) attempting to salve their conscience for that ’08 Obama vote?

  2. It is not our job to protect the people from the consequences of their political choices.

    It is, however, your job to enforce the Constitution by striking down laws that it does not authorize.

    And it is not your job, especially after pointing at political accountability to the voters as the ultimate check on the legislature, to conspire with the legislature to neuter that accountability by converting a politically acceptable “penalty” into a politically unacceptable “tax” after the fact.

    1. My thoughts exactly, and stated better than I could have. Certainly, the voters bear ultimate responsibility, but the court is supposed to insulate the nation from legislation that falls outside the framework that was designed to keep government contained. Its job is not to figure out ways to make bad policy fit, even if that policy was popular enough at the time for the legislation to have passed.

      It doesn’t matter if almost all citizens support it, every single member of Congress votes for it, and the president signs it, it still doesn’t change the fact that if something is unconstitutional, it’s unconstitutional. We’re in the place we’re in because of generations of justices that try to figure out how to make bits of policy fit within that limited framework.

  3. Impeach John Roberts!

    1. Yeah….good luck with that!

      If nothing else someone else who is prominent in politics/law has earned a new monicker: “Helicopter Ben Bernanke” meet John “Rubber Stamp” Roberts!

      How that improving the image of the court working out you weak sister?

  4. Fury at Incompetent Doctor Who Botched Surgery Beyond All Comprehension Is Misplaced Because He Wasn’t the One Who Shot the Savable Patient

    The fury isn’t misplaced. There’s plenty for both the spineless douche in a robe as well as for all the politicians. At least the politicians are theoretically subject to being called to account for their part in the idiocy.

    1. ^THIS X 10^

    2. Most readers have a basic understanding of margins and averages-obviously not entirely Roberts’ fault, but he could have stopped it nonetheless.

    3. Excellent.

  5. OT: Speaking of decisions, has anybody seen Zach Parise pulling a LeBron on the 3,516 Devils fans the past two days? He’s doing one hell of a job stringing everyone along in preparation of ripping our hearts out.

    1. As much as I’d love to see Parise Suter in Pens jerseys, I hate the idea of being one of those types of teams. They never seem to live up to the hype.

  6. How many strong opponents of the ACA are actually concerned about its constitutionality? Aren’t they mostly just extremely, extremely butthurt that Obama didn’t get sucker punched like they wanted him to?

    1. I’ll bite Mr Troll…

      We are extremely upset that the SCourt YET AGAIN failed in its duties to uphold the Constitution. Obama is an irrelevant douche-bag. He’s an intellectual lightweight unworthy of most of the vitriol directed at him. The ideology he is a figurehead for is determined to make every man, woman and child in this country “butthurt”

      1. Hmm, the Court ruled, yet the constitution remains. It just so happens that the ACA is permitted under it, as a matter of fact.

        I know we’re long, long past the time when conservatives/libertarians should have learned that not every stupid idea they pick up from hack philosophers or spittle-flinging radio fatheads is sanctioned by the constitution while nothing they disagree with is. But if they learned things easily they wouldn’t be conservatives/libertarians, so maybe it’s worth repeating.

        Roberts’ opinion was, by all accounts, barely coherent. The only coherent opinion offered in this case was Ginsburg’s. What the constitution may not be able to withstand is constant idiotic rightwing dogma parading around as legitimate just because intellectual jokes like Scalia and Thomas somehow got appointed to the Court.

        1. The next coherent opinion offered by Ginsburg will be her first.

          And, really, whether you agree with Scalia or not, to say that he is an intellectual joke is just trolling.

          1. Yeah people say how much of a heavyweight he is, but I don’t see it. At all. He is certainly of the opinion that he’s brilliant, but that’s just arrogance. And he may have been clever at one point in his life, but even his written opinions of late drip with FOX News pablum.

            It’s a fascinating phenomenon to me. I watched a brilliant professor of Classics of mine morph from mere neocon to hysterical Obama-hating tricorner-hat wearing moron in the span of a decade. Something is going on with the right. It gets increasingly radical every election cycle and nobody in the right seems to notice.

            “We were always at war with Romneyc–, er, Obamacare.”

            1. Tony, you really need to up your dose of haldol. Then those voices in your head wouldn’t be so loud.

              1. Hahaha! Perhaps you should read Scalia’s opinion, Tony. It is the only coherent one. Ginsburg spends her entire argument bitching about the Chief Justice’s Commerce Clause writing. Which likely isn’t even precedential, by the way. I’m surprised Ginsburg graduated from high school based on her complete inability to string together a paragraph’s worth of coherent thoughts.

        2. Your post is barely coherent.

          “the constitution remains”

          Yes, like toilet paper after you wipe your ass on it.

          You obviously don’t give a flying fuck about the Constitution or human rights and freedoms.

          1. It is a fact of law in every advanced country on this planet that healthcare is a human right. Now the US is incrementally closer to being as advanced as the rest of the advanced world on this issue.

            Not paying taxes is nowhere considered a basic human right.

            1. You know T o n y I’m starting to come around to your way of thinking. Time to just go on the dole like a significant percentage of the democratic base and vote myself a nice lifestyle.

              Now get your sissy ass back to work and pay me my fucking welfare/healthcare educational assistance, etc. !

              1. You will come around to my way of thinking once you dislodge this mote of incoherence from the center of your worldview.

                If being on welfare is sooo cushy then why aren’t the wealthy lining up to give away all their money so they too can live the good life?

                1. PAY ME MY FUCKING MONEY WAGE SLAVE! RIGHT FUCKING NOW!

                2. Tony the sophist strokes himself again.

                  Is the issue the fiscal unsustainability and abject destructiveness of urban culture by the Welfare state, or whether the rich can credibly declare a program ineffective because it deters legal employment with food/housing/$ handouts?

                  You are inventing the second issue to distract from your losing argument on the first. Typical statist lizard, unable to argue at an adult table, so sneaks around onthe floor behind the chairs, biting people on the arse. Somebody call the exterminator.

                3. Dumbass liberal once again shows how much of a dumbass he is.

                  The wealthy do not give up their wealth to live on welfare because obviously it is preferable to be wealthy to being on the dole. However the “wealthy” make up under 5% of the population and the poor only around 15%. That leaves the 80% in between them calculating the marginal utility of continuing to work or dropping out and getting on some form or welfare.

                  The question is not why the rich do not give up their wealth to go on welfare, it is why Joe Truckdriver does not give up his job to do so.

            2. And yet, this fact of law does not result in providing equal care for all.

              http://fra.europa.eu/fraWebsit…..011_en.htm

              I would also note that there cannot be a right to healthcare without also there being rights to shelter and food. This is why, although it may be a “fact of law,” if fails as a true definition of a right, since it must, by nature, impinge on another to provide.

              1. I would also note that there cannot be a right to healthcare without also there being rights to shelter and food. This is why, although it may be a “fact of law,” if fails as a true definition of a right, since it must, by nature, impinge on another to provide.

                I spit on you and your excuses. Now provide for me those things I deserve, nay…those things to which I am entitled taxpayer!

                T o n y I take it all back….your way is so much better!

            3. So… a “right to health care” trumps a right to freedom, a right not to be enslaved????

              We’re dramatically closer to Big Brother tyranny and bankruptcy.

              Your “right to health care” will guarrantee you only a space in line or in the waiting room of a dungeon that remotely resembles what used to be a hospital.

              Go eat your fucking broccoli, Tony.

              1. Tony, why do you always say that without finishing your sentence. You have “the right to healthcare…” from whom? Whose healthcare do you have a right to?

                1. Tony, why do you always say that without finishing your sentence. You have “the right to healthcare…” from whom? Whose healthcare do you have a right to?

                  People (should) have a right to healthcare, just as they have a right to education and a criminal justice system. Taxpayers should subsidize it in some practical way. It’s just collectivizing resources, it’s not a thug coming in to take your VCR.

                  Your absolutist principled stand is precious, really, but you don’t apply it consistently, and it can’t possibly work unless you’re a pure anarchist. We have public services. This is one I think it would be prudent to add to the list, not least because every other industrialized country has already done so and found it saves people money.

              2. Clearly you’re well traveled and have done your homework on other healthcare systems. In your wisdom you’ve determined that nearly every single citizen of the industrialized world is a slave.

                Perhaps we need a stronger word for people who are bought and sold as property?

            4. Healthcare is not a human right, Tony. In fact there are no human rights other than those specified in social contract and ours omits health care.

              Other Western societies cover healthcare as a practical matter. They save money with cost controls.

              Now a conservative will say that Gawd grants rights but that is pure garbage because rights are subject to legislation.

              1. Buttplug you fail libertarianism 101. Our right comes from our nature not legislation. Notice I said “right” because humans only have one, the right to liberty, all else follows from that.

              2. Palin are you suggesting that North Korean babies aren’t actually born with a full gamut of Jeffersonian liberties?

                1. Yes, of course they are not.

                  Liberty is a democratic value.

        3. “The only coherent opinion offered in this case was Ginsburg’s” If by coherent you mean consistent with her normal moon-bat progressive writings then we agree.

          Since you seem so quick to give absolute power to these Judges to trash the spirit AND letter of the Constitution I’m sure you’ll be okay when some jury uses nullification to set some muderer free because “his heart was in the right place” 🙂

          TTYL Troll…

        4. [Hmm, the Court ruled, yet the constitution remains.]

          Prove it.

      2. Nice “Workaholics” reference.

    2. Aren’t they mostly just extremely, extremely butthurt that Obama didn’t get sucker punched like they wanted him to?

      No. The people who wanted Obama sucker punched got exactly what they wanted, and many are now singing the CJ’s praises.

  7. Stop giving passes, Reason is becoming pathetic.

    Roberts failed his duty to ensure that law passed and action taken by the executive and legislative branches are allowed under the Constitution.

    Congress failed in passing the clearly unConstitutional law.

    The President failed by signing it.

    ALL PARTIES FAILED.

    It is just further confirmation of the fact that the idea and application of limited government that is supposed to check itself is completely invalid.

  8. Conservative [and their new BFF, libertarian] fury at the chief justice of the United States.

    Tiny fists of rage, salty ham tears of sad.

    1. Shouldn’t you be off having another hot flash Mary?

  9. I am awed by how many people CRAVE subjugation… Libertarians make simple appeals to reason. “I don’t want to take anything from you. Please provide me the same courtesy. Lets live in peace.” Sadly the libertarian message appeals to such a small portion of the populace.

    Lefty trolls are everywhere jumping up and down CELEBRATING their serfdom. “HaHa the government can make you (and me) do something you don’t want! Nanny Nanny Boo Boo stick your head in Doo Doo.”

    Please let us get the Warp Drive so we can find an M class planet and leave the assholes behind 🙂

    1. Coworkers today were discussing how Mass is legalizing casinos and several were saying that doing so is “endorsing gambling”. One went further and said stopping reasonable slots players from having fun is a small price to pay to avoid encouraging gambling addicts, even though he admitted that they would just gamble somewhere else anyway.

      1. It’s becoming physically painful for me to hear these arguments. This group of swelling masses that are so pathetic, so devoid of power/accomplishment/joy in their own lives that they simply MUST wield power over others to give their small insignificant lives meaning. They can’t take the initiative to help others as individuals, but they’re desperate for the feel good opioid of supporting a government that does it for them.

        “Look I’m a good person! I supported team blue/red and they protect people from themselves. I’m vicariously making the world a better place!”

        Fucking lemmings. I wish they’d find the cliff’s edge.

        1. “CELEBRATING their serfdom.”

          Sad indeed. And bereft of the most rudimentary understanding of what libertarianism means.
          Even the strawman arguments are empty, ostrich mimicking, lacking in logical cohesion. And ultimately arrogant, cold and blind.

          I don’t wish for the cliff’s edge for them, but just leaving me alone would suffice. And that includes their agents in arms.

          The ‘opposition’ lives their lives in fear. And reliance on the opioid, of which you speak, keeps them in the complacent dark. Sleeping well at night, but afraid in the dark, nevertheless.

          1. “The ‘opposition’ lives their lives in fear” – And there in lies the rub…

            Libertarians and honest conservatives accept the risks and rewards life has to offer. We understand that life’s beauty is in success AND failure. We know that victories are defined by the sacrifices made to attain them.

            The Statists at best want an unattainable utopia and at worst have a Machiavellian desire to drag EVERYONE down to the bottom. But how can you make this argument to a world full of sheeple who seem content with subjugation?

  10. Fury at Chief Justice John Roberts Is Misplaced

    Wrong.

    Thanks for playing. Fuck off, slaver lover.

  11. Here’s why Roberts needs rage directed at him: PRECEDENT.

    Even if Obamacare is repealed, a future congress will use this ruling to impose even more sneaky and arbitrary Inactivity Taxes.

    With this power the govt can make you DO SPECIFIC ACTS. This is motherfricking slavery, Ira.

    The 5 justices who did this are modern slavemasters, as are most Democrats, half the Republicans, and all of MSNBC.

    They are not benevolent dictators either. Can you not feel the malevolence, the acids dripping from the mouths of Reid and Pelosi when they pretend to have compassion, when they play race cards, and lie incessantly about the high benefits and low costs of their poison pills they can’t wait to force feed us?

    Are not Pelosi, Hillary, and Sebilius a combination of Nurse Ratched and the sister hags in Macbeth cooking up toil and trouble for the great unwashed?

    With those rancid clams sitting on the Death Panel, eating aborted fetuses as they check off DEATH for every Proll over 80, I’ll take my chances with my home bloodletting kit.

    But as stated above, Obamacare is only the beginning of the maladies Roberts has loosed upon the Earth. Will we be lambs or lions? We have not yet begun to rage, Ira.

    Scourging them with words might do some good, at least it might delay their power consolidation while we build and cache arms.

    This Apocalyptic downer was brought to you by the Fed, printing happiness since 1913!

    1. Too late! Those of us who decided not to have children are already paying thousands every year more in taxes than those that do not. Same goes for those people who decided not to go to school; or buy a house. On it goes. Americans have been paying taxes for NOT DOING ANYTHING since its inception. This is not a precedent in any way shape or form.

    2. Government has been penalizing people for not having kids, not having a mortgage, not buying energy efficient windows, etc for a long time.

      I actually agree with Roberts’ thesis that it is a tax, and it’s just like those other things. It’s just that I think those other things should be found unconstitutional, too.

      1. Okay, fair enough.
        But by ruling against ACA, he could have been bold enough to take the first step in your journey.
        He failed.

    3. ’13 was a portentous year indeed, in many respects.

      Only a few short months to the centennial. Chilling.

  12. I agree with the author here, by and large. I’m amazed that a majority on the Court even agreed that the Commerce Clause had limits at all, given previous history on that topic.

    The history of the Supreme Court and Constitutional interpretation shows that rarely have limits been placed on the power of the legislature and executive when it comes to economic issues, and I’m surprised anyone’s surprised to see it again.

    Worth noting, too: conservatism is still not libertarianism. Right now, many conservatives are willing to espouse libertarian-seeming causes. Why? Because THE OTHER GUYS ARE IN POWER. They’re all about limited government, constitutional restraints, etc etc.

    Watch them run straight back to believing that the federal government should have all the power in the world if a Republican is in charge of it.

  13. It is true we need more libertarian minded people across the board. But even if I am the only person in America who did not agree with the ACA, it is the Supreme Court’s job to strike it down if it violates the Constitution and my Constitutionally protected rights.

    1. But it doesn’t. John Roberts says so. The end. Really.

      1. Even people like Roberts can commit royal fuck-ups.

        As for your mealy-mouthed “we won, do what the fuck our side says and shut the hell up” mentality… fuck you, Tony.

        1. I’m not begrudging you your grief and lashing out. How do you think I felt after Bush v. Gore? The wound numbs with time.

          1. So you mean you now freely admit that Gore lost the election and Bush was the proper President?

            Further do you agree that corporations are protected by the 1st Amendment especially when it comes to political speech?

            If you do not then it means that you agree that the SC can be wrong when ruling on an issue and therefore agree that while the PPACA is unquestionably the law of the land now that fact does not guarantee that it is valid under the Constitution because the SC is not infaliable.

            1. I would never say the SC is infallible. It’s just a question of terms. I use “should” when you guys use “is.” You guys should use “should” more often and stop pretending like there is a perfect interpretation of the constitution floating in the heavens.

      2. Except. Jim Crow was constitutional before it wasn’t.

        1. As was slavery.

  14. Really no way dude. Wow.

    http://www.Global-Privacy.tk

  15. Who gives a shit? It’s not like we’re going to have a free market in medicine or medical care no matter who’s in charge, the governmenr or the medical labor union/cartel (AMA). It’s not about freedom, it’s about who holds the gun while the public gets robbed.

  16. *government- really need an edit feature here

  17. government health spending in America grew to $1,036 billion in 2007 from $597 billion in 2000. Part of that was http://www.ceinturesfr.com/cei…..-c-11.html driven by a new prescription drug benefit in Medicare that was welcomed by the pharmaceutical industry, which helps fund some of the right-of-center politicians and think tanks.

    1. I think that most people in here know that the “conservatives” are just as much the bad guys as are “progressives”. And just as incorrectly self described. There is really only one meaningful political distinction and that is between those who believe in liberty and those who do not.

  18. This incident is really a funny to me how this guy is misplaced.

  19. Um, there is one problem here.

    Government pays for more than 45% of all health care spending in this country.

    45% only covers Medicare and Medicaid and while they are the largest government health care programs they are not the only ones because they fail to include government and military employee and retiree health programs as well as the VA and then numerous state, county, and local health programs as well.

    When you add it all up across all levels of government it comes out to somewhere around 70% of all health care dollars in America are paid for by some government entity.

    1. But, but, but…market failure! The 30% of health care provided by private entities hasn’t kept costs down! The solution is clearly more government intervention in health care.

      1. DJK, in all these programs, apart from the VA, the medical care is provided by private entities.

        Only the payment is provided by the government.

  20. I have a question on this health care issue, and I’ve been looking for somebody to explain it. I am against big government, I am against being forced to buy insurance, but what is the difference between being taxed if you don’t buy something or being given a tax credit if you do buy something? (IE, if somebody buys an environmentally friendly car, or puts a windmill on their roof)

    1. There is no difference. that’s the game. Make things as complicated and then attack the complexity as needing a solution and then grow govt. It’s all social engineering and it all is immoral for government to do.

  21. The lawyers turned out to be correct. According to seven justices of the Court, including former Edward Kennedy aide Stephen Breyer and former Obama solicitor general Elena Kagan, the penalty the law imposed on states in connection with a mandate to expand the Medicaid program was unconstitutional. And according to five of the nine justices, Congress lacked the power under the Commerce clause to impose an individual mandate.

  22. “It is not our job to protect the people from the consequences of their political choices.”

    Yes, it is.

  23. “It is not our job to protect the people from the consequences of their political choices.”

    Yes, it is.

  24. On some broader level, the whole episode points to the risks of the way in which the conservative movement, including the libertarian wing of it, has been overrun by lawyers in a less than entirely healthy way.

  25. Does anyone else make an unconcious comarison to the Nazguls in Lord of the Rings when they think of the SCOTUS?

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