Antonin Scalia

The Case Against Judicial Restraint: ObamaCare Edition

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Clarence Thomas and Antonin Scalia debate the ObamaCare ruling with John Roberts.

Did Chief Justice John Roberts switch sides in the ObamaCare case, voting originally to strike down the individual mandate for exceeding Congress' powers under the Commerce Clause, only to change his mind later and vote to uphold the mandate as a legitimate exercise of Congress' taxing power? There's some evidence that he did. If that is indeed what happened, why did he do it?

Like my colleague Peter Suderman, I find it difficult to believe that the chief justice changed his tune because he was worried about what The New York Times or some other liberal outlet would say about him. Roberts is no fool. He knows perfectly well that any new fans he acquired last week will evaporate the moment he casts a more conservative vote in a future case.

And it's not like the chief's decision came as a total surprise. There was always the distinct possibility he would uphold the mandate and frame his vote as an act of judicial restraint.

In my view, Roberts most likely had a divided mind on the case from the start. On the one hand he clearly found the government's unprecedented theory of Commerce Clause power to be constitutionally defective, yet on the other hand he couldn't shake his belief that ObamaCare was entitled to significant deference by the federal courts. So he split the difference and justified his decision by falling back on well-worn arguments in favor of judicial restraint, including an admiring nod to the Court's most famous proponent of deference, Justice Oliver Wendell Holmes, plus a none-too-subtle suggestion that disgruntled conservatives take their complaints to the ballot box. As Roberts put it, "It is not our job to protect the people from the consequences of their political choices."

The Cato Institute's Ilya Shapiro describes Roberts' position as "judicial pacifism," and I think that's exactly right. Rather than acting as a check on the other branches of government—which is what the Supreme Court should always do—Roberts' act of deference gave Congress and the White House the benefit of the doubt.

For a nice summary of why that approach is wrong, look no further than the U.S. Court of Appeals for the 11th Circuit, which voted to strike down the individual mandate last year. "When Congress oversteps [the Commerce Clause's] outer limits," the 11th Circuit declared, "the Constitution requires judicial engagement, not judicial abdication."

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  1. The legislature makes the laws, the executive enforces the laws, and the Court is there to protect us from the other two branches of Government.

  2. if it walks like a duck =/ “judicial pacifism”

    1. What is the tax taxing exactly, Orrin?

      1. It is essentially a tax on being alive and in the US. A very dangerous tax indeed!

      2. curiously, it appears to be taxing inactivity. That makes it unprecedented, which you might think would be enough to make Obama sing the tax song, too, given his too frequent use of “unprecedented.”

        1. Unprecedented does not mean unconstitutional.

          Congress has the power to tax. Just because it hasn’t taxed inactivity in the past doesn’t mean that doing so violates the constitution.

          Besides, how are we to cure the obesity epidemic if we don’t tax people who do not comply with the “Let’s move!” campaign?

          1. Congress has the power to tax. Just because it hasn’t taxed inactivity in the past doesn’t mean that doing so violates the constitution.

            Leaving aside the argument that this tax isn’t actually the kind of tax the Constitution allows . . . .

            There is the notion that Congress can’t use the taxing authority to accomplish ends that are otherwise forbidden to it. Under Roberts’ opinion, one wonders why the Founders bothered with all those other enumerated powers, since Congress can do just about any damn thing it wants just by naming the IRS as the agency you should pay your penalties and fines to.

            1. The tax is weird.

              On one hand it is a $750 head tax, which would be constitutional if apportioned by population, which I suppose a head tax would be automatically. If you are below a certain income level you are taxed at a lower rate based on your income. Either that lower rate needs to be apportioned by state population, or it is a separate income tax only imposed on some people. If it is not apportioned by population, then it is unconstitutional. If some people’s incomes are taxed, but others are issued a $750 head tax, then that violates the equal protection clause.

              I’m sure there are holes to be poked in this argument, but what are they?

            2. What kind of tax does the Constitution allow? I thought it just granted Congress the power to levy taxes with no other limit?

              Oh wait…I know a limit…you can vote out people that tax you in ways you don’t like!

              1. Ha ha. That’s a good one.

                But seriously…

                Allowed are income taxes from any source without apportionment by population, and direct taxes, but only if they are apportioned based on state population.

                Now re-read what I wrote above and tell me how it’s supposed to work.

      3. nothing if one already has insurance

  3. The problem we have is our conceptual notion of what it is the Supreme Court is supposed to do. Any smart person should realize that if the Court is the sole arbiter of what is and is not constitutionally permissible, you may as well not have the other branches. In other words, the Court restrains itself because the people on the Court are essentially conservative (in the old use of that word). If they seized upon the kind of power we have truly granted them, they would rule the Federal Government.

    Constitutionality can be adjudicated by the Supreme Court, but it is really the responsibility of what I call the five branches of the federal government (The three plus the States and ultimately the People) to determine constitutionality.

    1. If they seized upon the kind of power we have truly granted them, they would rule the Federal Government.

      No they wouldn’t.

      The power they legitimately have is entirely negative, ie to strike down and prevent federal action.

      That does not equal ruling.

      Ironically, Roberts logical contortions did arrogate new power to the court, ie the power to redefine the definition of words in laws. Which is a much more dangerous power than merely being able to strike down unconstitutional laws.

      1. The power they legitimately have is entirely negative, ie to strike down and prevent federal action.

        They can command the other branches to do something. For example, they may command Eric Holder to turn over the documents or then command the Administration to prosecute the contempt citation.

        1. They can command the other branches to do something.

          To the extent that a co-equal branch could actually do so. Hence Andrew Jackson “John Marshall has made his decision, now let him enforce it.”

    2. Why would being the sole arbiter of constitutionality allow them to rule the government? All they can do is strike down laws. They can’t pass legislation or enforce it.

      1. Too damn slow.

      2. And even then they are not the sole arbiter. There is nothing to stop a President from vetoing legislation he feels is unconstitutional regardless of what the court’s opinion is.

        1. I said “if” John. In other words, I am agreeing with you on that limited point.

          My problem is that all five branches (or, if you don’t like that, three) are supposed to determine constitutionality. My problem with some libertarian/conservative viewpoints is that it puts too much faith in the Courts.

          1. And I generally agree with you about that. Libertarians all fainted when Gingrich said he would drag justices up before congress to explain their decisions. I agree with it. I think the Congress and ultimately the people own the Constitution and its meaning not the court. If the people don’t like this ruling, elect a Congress and President that throws Roberts and the other miscreants off the court and puts someone who will interpret the document properly. “You are wrong” is a perfectly legitimate reason to toss a judge.

          2. The court is the final arbiter, not the sole arbiter.

  4. I always thought the purpose of the legislature was to make the laws, the executive to enforce the laws, and the judiciary to protect the people from the other two branches.

    1. Perhaps the problem is that the federal judiciary has no incentive to protect the people from anything. Instead, it’s sole purpose is to remain “relevant”.

      1. Very well said.

    2. The new progressive theory is that the real purpose of the SCOTUS is to legitimize the actions of the other two branches.

      Or in plain english they are a marketing division of the government.

    3. That is such a quaint notion.

      The legislature delegates rule making to the executive, the executive does whatever the fuck it wants, and the judiciary defends the government from uppity little people who have the temerity to challenge its power.

      IOW “Fuck you, that’s why”

      1. I think the original idea of three co-equal branches was that if one branch got too powerful, the other two would team up to slap them back into line. That is why they were set up to be antagonistic to each other. They didn’t really anticipate that all three would join together to fuck the people.

        1. I don’t know…the whole point of the 2nd Amendment may well have been in case of this unholy trinity uniting against the rest of us. The Founders were pretty clear that even this system could get fucked up since it depends on people to run it.

          1. Yeah, ultimately the purpose of the Second Amendment is to guarantee the rest of the rights the people possess. However, the three colluding branches have managed to neutralize this threat rather handily.

    4. The Court was never designed to protect you. The electoral process is designed to be your protection.

      The Court’s job is to tell you what the law is. When the legislature passes a law and there are disputes under that, the Court narrowly adjudicates those disputes under the rules set down by the legislature and signed by the President.

      If the executive acts outside the law or the legislature acts outside their boundaries in the Constitution the Court is there to be the umpire. But they do not protect you from stupid laws.

      Stupid is not the same as unconstitutional.

  5. …yet on the other hand he couldn’t shake his belief that ObamaCare was entitled to significant deference by the federal courts.

    The way the law was eventually passed – reconciliation – shows you exactly how legitimate the legislation is. But Roberts shouldn’t have taken that into account with his decision any more than he should have taken deference to the legislature. The law was either written to have an effect within the contraints of the Constitution or it wasn’t.

    1. The law was either written to have an effect within the contraints of the Constitution or it wasn’t.

      your premise is predicated on the notion of the Obama/Reid/Pelosi nexus actually giving a shit about the constraints of the Constitution, and nothing in their actions indicates that they do.

    2. “ObamaCare was entitled to significant deference by the federal courts.”

      No one and no law is entitled to significant deference by any court. You are either guilty or not guilty. A law is either constitutional or unconstitutional. Opinions, popularity, etc. shouldn’t matter in court. Only reality.

      1. Again, the other two branches said it was constitutional. You’re putting too much power into the hands of the Court. It was incumbent on the 536 other bastards to enforce the Constitution too.

        1. And when they won’t do their duty, what is our recourse?

          Leave the shitty law on the books unless/until we can overcome all the political/structural barriers and get it repealed?

          Screw that. SCOTUS has, not just the authority, but the obligation, to strike down unconstitutional laws.

          To argue that, because the political branches won’t do their duty, neither should SCOTUS, is bizarre at best.

          1. Yes, your recourse is to overturn the bill.

            Look, right now, we have a situation where the Congress and the President can do whatever the hell they want to, and say “well, if it was unconstitutional, the Supreme Court woulda told us so!”

            That is not how it is supposed to be.

          2. What Randian said. The issue RC is what do you do when the SCOTUS won’t do its duty? And the answer to that lies in the elected branches. In an ideal world, the new Congress would remove Roberts and the other four justices from office. But since that is not realistic, the best alternative is to overturn the legislation.

            1. Congress constitutionally has the power to do that and we’d be better off if they started exercising their power instead of acting like a pack of pussies.

            2. The issue RC is what do you do when the SCOTUS won’t do its duty? And the answer to that lies in the elected branches.

              That’s true, but I took Randian to say that the SCOTUS should have no authority to overturn a law, since it had already been deemed Constitutional (implicitly) by the other two branches.

              Just because Congress and the Executive has violated their duty is no reason to excuse the Court from doing its duty.

    3. Reconciliation doesn’t matter at all. If the law was legally passed then that is that.

      Again, Roberts’ duty was not to comment on the legislature’s dysfunction or help protect people from the leaders they elected.

      If the mandate is a tax and the government has plenary power to tax, then Roberts was right.

      You can disagree about whether or not the mandate is a tax, but it is dangerous to start begging for the Court to take on a more activist role.

  6. Roberts is no fool

    Are you sure?

    1. Orange Line cosmos think that it’s simply a given that if you went to Harvard, you’re a genius.

      1. You’re a dipshit.

        1. Gee, I wonder if you’re one of the guys I’m talking about.

          1. Nope. that doesn’t make you any less of a dipshit.

            1. Yeah, right. Try not to spill any Pinot Noir on yourself at the Front Page.

              1. Classic! Enjoyable wines = liberal elite. Have fun fighting the White Trash Culture Wars, dipshit.

                1. And “white trash” is a classic epithet used by liberals and cosmo types to describe people that have the nerve to live outside the Beltway to Boston corridor and work a real job. People that scum like Randian have deluded themselves into thinking that they’re superior to.

                  1. Bwa ha ha. More trash tears. Yummy.

        2. Sounds like an admission by ad hominem.

          1. And “Orange Line cosmos” wasn’t an ad hominem? It’s like a giant strawman stuffed with other strawmen.

            1. Strawmen all the way down?

              Sounds like Obama’s political philosophy.

            2. Is that a reference to Lone Wacko?

              1. It’s more a anti-Cato smear that briefly was popular with the Lew Rockwell crowd.

                I guess the Cato Institute, Reason Foundation and various and sundry heretics and backsliders have offices at various stops along the Metro Orange line.

                Of course, to get that, one would have to be familiar with DC, so it’s a bit self-defeating from a meta-perspective… I think that’s probably hwy it died.

                Of course, Lonewacko loooooved the trope, so most people on Reason only were exposed to it via him.

                1. It’s more a anti-Cato smear that briefly was popular with the Lew Rockwell crowd.

                  I’ve heard it used as more a generic anti DC smear.

                  Maybe the closer you get to DC the more specific the meaning becomes.

              2. He started the “Orange Line” canard. Which in LoneWacko speak meant variously “So-called libertarians who don’t want to round up every Hispanic and send them to Mexico” or “People who laugh at me because I’m an idiot.”

                It’s a strawman insult from its very conception.

                1. An Orange Line cosmo might make a good drink. And before you laugh, the simple fact that Cosmos are pink does not make them weak.

                  1. Orange Line Cosmopolitan

                    1 oz vodka
                    1/2 oz Grand Marnier
                    1/2 oz fresh lime juice (Approx. 1/2 of a lime)
                    1/2 oz fresh orange juice

                    Take a large and pith-free piece of orange peel, splash it with a little vodka, and light it on fire. Let the fire burn itself out, add it to chilled cocktail glass. Shake the other ingredients with ice and strain.

                    1. 1 oz vodka
                      1/2 oz Grand Marnier
                      1/2 oz fresh lime juice (Approx. 1/2 of a lime)
                      1/2 oz fresh orange juice
                      1 Harvard Diploma

                      *ducks*

                2. It’s more a anti-Cato smear that briefly was popular with the Lew Rockwell crowd.

                  I stand corrected. I though LW started it. The one time ignoring Lew Rockwell didn’t turn out to be the right move.

                  1. Reason HQ is on DuPont Circle which is on the Red no Orange line. Typical Lonewacko even managed to fuck that up. I always wondered what the fuck his Orange Line Special handle was supposed to mean.

          2. Let me break this out for you. Here is the “logic” behind Mike M’s theory:

            1. “Orange Line cosmos” love men from harvard
            2. Proof? Root said “Roberts is no fool”

            Why is this bad argumentation? Well, first, because in the context of the sentence, Root is clearly saying that Roberts is no fool because Root finds it dubious that Roberts would change his mind based on what the liberal papers around DC were saying about SCOTUS. He did NOT say “Roberts is no fool because he went to Harvard”.

            Further evidence that reason is not enamored automatically with people who went to Harvard would be the fact that a) Bush went to Harvard b) Obama went to Harvard and c) in this example, reason has drubbed Roberts pretty badly over the PPACA decision.

            Therefore, Mike M. is a dipshit. QED.

            1. But the statement:

              Orange Line cosmos think that it’s simply a given that if you went to Harvard, you’re a genius.

              There is entirely too much respect in the legacy media and government for super smart people from the ivy league schools and open disdain for everyone else.

              Feeling compelled to attack that statement with an ad hominem kinda self identifies you as an Orange Line Cosmo

              1. Feeling compelled to attack that statement with an ad hominem kinda self identifies you as an Orange Line Cosmo

                Or it identifies the fact that I think that Mike is stunningly wrong that he is, in fact, a dipshit.

                Your theory is right up there with “If you deny you’re gay, you must be gay”

                1. No it’s not.

                  It’s like saying that if you’re offended by the phrase trailer trash, when it is not directed at you specifically, that you are probably a low income white American.

              2. Should be:

                But the statement:

                Orange Line cosmos think that it’s simply a given that if you went to Harvard, you’re a genius is accurate.

                1. As Lehosh correctly asks above, just what makes anyone so sure that John Roberts is “no fool”?

                  There really is no genuine evidence to back up such an assertion like this; it’s something that we’re all just supposed to take for granted based on nothing more than his credentials.

                  Well, I make no such assumption. In fact, I think he is a complete and utter fool. What do you think of that?

                  1. Well, I make no such assumption. In fact, I think he is a complete and utter fool. What do you think of that?

                    in the context, the phrase would read “I don’t think John Roberts is a fool in this regard“, in that “I, Damon Root, do not believe that Roberts changed his opinion based on the fact ‘he was worried about what The New York Times or some other liberal outlet would say about him.’

                    The fact that you failed reading comprehension 101 does not give you license to go around being a dipshit.

                    1. The fact that you failed reading comprehension 101 does not give you license to go around being a dipshit.

                      Yeah, you gotta go to Harvard to get that license.

                2. Orange Line cosmos think that it’s simply a given that if you went to Harvard, you’re a genius is accurate.

                  Assertion without evidence, and contradicted by the voluminous posts bashing Harvard grads.

                  1. Again, you seem to be self identifying as an Orange Line Cosmo and think that describes reason as well.

                    I guess if the shoe fits…

                    1. I guess if the shoe fits…

                      Oh, it fits. The use of “white trash” earlier on is a dead giveaway. This is a classic scum who thinks he’s better than everyone.

                    2. hurr durr Pinot Noir. I bet the local radio stations think you’re the bees fuckin’ knees.

                    3. Oh, and on top of everything else, your blog fucking sucks.

                    4. I bet the local radio stations think you’re the bees fuckin’ knees.

                      Shrike?

                    5. Cut Randian some slack. He gets cranky when he hasn’t had his enema.

                  2. Isn’t there a racist under a bed somewhere you need to go catch?

                    1. For the record no one here hates Washington elites and Ivy Leaguers more than I do. And I love wine and fire places.

                    2. And he likes pina coladas and getting caught in the rain.

                    3. You got it dude.

  7. It’s not about what reporters think. It’s about what scholars at Harvard Law and Yale will say about him in years to come.

    Roberts doesn’t want to be the next Rehnquist court, which made decent decisions and is derided in law schools every single day.

  8. The 11th Circuit is not relevant because Roberts didn’t uphold the law based on the Commerce Power.

    The mandate is a tax. The government’s taxing power is pretty much unlimited (so long as it does not violate equal protection or due process). Therefore the mandate is constitutional. Why do people struggle with this?

    1. “The mandate is a tax.”

      Is it? The only one in the majority ruling believes it is. Fine, he’s the Chief Justice and assigned himself the opinion. But his ruling it constituttional on different grounds just hopelessly muddied the waters.

      What we actually see here is that four justices see the government as having totalitarian authority through the commerce clause, four do not, and one sided with the totalitarians but does not buy their reasononhg on the merits. Roberts took the sophomoric path here.

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