Fury at Chief Justice John Roberts Is Misplaced

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


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