Antonin Scalia

John Roberts' Constitutional Avoidance

In Bond v. United States, the chief justice used a "saving construction" to avoid a constitutional showdown. Sound familiar?



Two years ago, when Chief Justice John Roberts led the Supreme Court in upholding the constitutionality of the Patient Protection and Affordable Care Act, he justified his decision in terms of judicial restraint. "If there are two possible interpretations of a statute," Roberts wrote, "and one of those interpretations violates the Constitution, the courts should adopt the interpretation that allows the statute to be upheld." Roberts then proceeded to uphold Obamacare by adopting what he called a "saving construction" of the health care law.

Libertarians and conservatives were outraged by Roberts' deferential maneuver—and with good reason. They expected the Supreme Court to follow the Constitution, not tip the scales in favor of a contested federal statute.

The chief justice of the United States performed another act of constitutional avoidance this week in the case of Bond v. United States. At issue was the bizarre prosecution of a Pennsylvania woman named Carol Anne Bond, who was sentenced to six years in federal prison under the terms of the 1998 Chemical Weapons Convention Implementation Act. Her crime? She smeared two toxic chemicals on the doorknob, car door, and mailbox of a woman who had been having an affair with her husband. Bond's victim suffered a slight burn to one hand.

In a surprise twist, this soap opera-like saga raised major questions of federalism and the reach of federal power. According to the Obama administration, its power to make and enforce treaties with foreign governments (such as the Chemical Weapons Convention) was itself sufficient authority to justify the sweeping federal statute deployed against Bond.

Yet as Justice Anthony Kennedy told Solicitor General Donald Verrilli during oral arguments, it "seems unimaginable that you would bring this prosecution." Bond, meanwhile, argued that the 10th Amendment prevented the government from making a federal crime out of her purely local offense.

On Monday the Supreme Court ruled 9-0 in Bond's favor. The Obama administration's "boundless" interpretation of the chemical weapons law, declared the opinion of Chief Justice Roberts, "would transform the statute from one whose core concerns are acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults."

Much like he did in the 2012 health care case, however, Roberts then stopped short. Although the text of the federal law plainly criminalized the possession and use of toxic chemicals for non-"peaceful" purposes, Roberts nonetheless construed that text as narrowly as possible, issuing another saving construction that allowed the embattled federal statute to survive unscathed. The Chemical Weapons Convention Implementation Act, he declared, "does not cover the unremarkable local offense at issue here."

In other words, while Bond should not have faced federal charges, the law itself could remain on the books.

To be sure, that outcome was a resounding defeat for the Obama administration, which failed to garner a single vote in favor of its expansive case for federal power. But the outcome could have been far worse for the administration. In fact, Justices Antonin Scalia, Clarence Thomas, and Samuel Alito clearly wanted to make it so. While those three justices also voted in Bond's favor, they refused to sign on to Roberts' rationale. In their view, the chemical weapons law did criminalize Bond's local deeds—and that fact rendered it an unconstitutional exercise of federal power.

"As sweeping and unsettling as the Chemical Weapons Convention Implementation Act of 1998 may be, it is clear beyond doubt that it covers what Bond did," wrote Justice Scalia in a concurring opinion. "So we are forced to decide—there is no way around it—whether the Act's application to what Bond did was constitutional. I would hold that it was not." As Scalia saw it, Roberts' narrow approach was tantamount to an act of judicial surrender. "We should not have shirked our duty and distorted the law," Scalia concluded.

It's common these days for legal observers, especially those on the left, to speak of the Supreme Court's right-leaning justices as if they marched in intellectual lockstep. Linda Greenhouse of The New York Times, for example, recently echoed that liberal narrative in these terms: "I'm finding it impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda."

Perhaps she should try a little harder before reaching such a facile conclusion. In Bond, as in the health care case before it, the "Republican-appointed majority" had a prime opportunity to declare unconstitutional an overreaching federal law defended by the Obama administration. Yet in both cases, the chief justice broke with his nominal friends on the right, joining instead with the Court's liberals (plus the mercurial Justice Kennedy in Bond) to craft a saving construction that cabined the Court's ruling and avoided a broader constitutional showdown.

For better or worse, John Roberts is marching to a beat of his own.

NEXT: Aide to Pope Francis Demonstrates Why Separation of Church and State Is So Important for Freedom

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  1. And it has begun:

    The Media has found issues with the commercialization of pot. Some kind of government regulation is in order:

    Medical-pot patients don’t always know what they are getting

    Jessica Tonani, CEO of Verda Bio, a small Seattle biotech company, is researching the consistency and variety in medical-marijuana strains. Testing shows that some pot strains aren’t what they purport to be. This is particularly worrisome for patients who seek strains that are low in intoxicants and high in pain-relief qualities, so they’re not stoned at work or behind the wheel.…..ngxml.html

    1. If it represents any kind of increased freedom, it must be attacked, Paul. You know this. That’s the media’s job now.

      1. I thought they were the concern trolls of America.

        1. They seem to only be concerned about certain things.

    2. This is particularly worrisome for patients who seek strains that are low in intoxicants and high in pain-relief qualities, so they’re not stoned at work or behind the wheel.

      It’s almost like it wasn’t a big part of the medical marijuana movement that dosing yourself was easier with a joint than with pills.

  2. John Roberts, the gift that Bush gave us that keeps shredding the Constitution one piece at a time. (but at the same time, he requires 4 other accomplices to do this).

  3. Perhaps ironically, Jefferson wanted the Sup Court to avoid striking down legislation as unconstitutional since he believed that legislation represented the will of the people, rather than judicial fiat.

    Obviously, he could not perceive how big and intrusive government would become.

    1. Jefferson apparently did not realize that there has to be some mechanism for getting rid of popular yet unconstitutional laws.

      I find that kind of hard to believe, so what did he propose to keep the tyranny of the majority within Constitutional bounds? Because if you’re going to let any legislation stand until repealed by the legislature, you don’t really need a Constitution. Certainly not a bill of rights, a list of limited enumerated powers, or any of the other purported Constitutional checks on government authority.

      1. From what I remember from his writings, he believed each branch was equal, and could counter balance each other. He was in France when the constitution was being created so maybe he didn’t really appreciate how a legislature could get out of control. But he certainly worried about an out of control judiciary.

    2. He also wanted widespread jury nullification to deal with unjust and unconstitutional laws.

      1. Which also essentially defaults to the popularity of the law.

    3. Jefferson was a “good-cop, bad-cop” sort of guy. Lots of great ideas about liberty and democracy but some rather glaring oversights that he should have seen even in the historical context of his lifetime. There are numerous missed opportunities like that in US history.

  4. ‘Justice Roberts, so you swear and affirm that you will lick the boots of…?’

  5. When my cheese slides off the cracker I want to go the white-people prison. Y’all go ahead and charge me that federal crime good and hard.

  6. I think the principal that if two constructions are possible we should infer the constitutional one is non-controversial. The issue with this case, and with the ACA one, is that the construction preferred by the majority is not a possible construction given the constraints of English.

    1. Why is my grammar so bad lately? Fuck me.

    2. Yeah, the problem is that, while interpreting ambiguous language is a proper judicial function, rewriting statutes is not. The line between the two can be kinda hard to draw in close cases, but that doesn’t mean the distinction isn’t real.

      Except to SCOTUS. They have been rewriting everything, including the Constitution, for some time now. That’s the real judicial activism, and it is an abomination, whether its done in the service of something you support or something you oppose.

  7. OT, but worth it.
    I posted this morning regarding a lefty columnist claiming Amazon must be forced to sell a publisher’s books at the publisher’s price, ’cause Amazon is successful and the publisher makes art! And market failure; you can’t get the books anywhere else! And STUFF!
    Well, I have a feeling his balls are just about frozen right now; Walmart is gonna sell them.
    Here’s the link to the slaver:
    And, for you viewing pleasure:
    “Walmart Cashes In On Amazon’s Feud With French Publisher Hachette”…..-hachette/

    1. Oh that is yummy.

    2. They [books] are not a commodity like wheelbarrows or socks; they are something more important, a vehicle for free political speech and free artistic speech.

      He’s got a point about socks. They’re useless without shoes.

      1. “a vehicle for free political speech and free artistic speech.”

        And the irony of FORCING someone to provide that “free” speech is lost on this ignoramus.

      2. Only a sheltered idiot would think that wheelbarrows are unimportant. The wheelbarrow always seems to be left out of those “top 100 inventions of all time” lists, but a look through history shows what a labor saving device it truly is. And the design is so simple, it is hard to believe that it was one of those technologies forgotten in medieval Europe, not reappearing until the 12th century or so. It is truly a Dark Age when one has to hump materials without the use of a bearwe. Incidentally, the ancient Chinese had wheelbarrows that included a sail. (The more you know…)

        1. That’s spooky. Saturday I was marveling at the wheelbarrows at Lowes…three different handle designs, one a big loop for “total control”. When I told my wife, she showed me a gardeners canvas wheel barrow that will lay flat on the ground for loading rocks or weeds when weeding your garden.

          Even the humble wheel barrow gets refined and improved in when free enterprise is allowed.

          1. I think it would be really special if they could just manage to come up with one that didn’t rust or rot out inside of a year or two.

    3. email from Hachette:
      “Nice try hack, but we’re still not going to publish your Game of Thrones slash fic.”

  8. Chief Justice Roberts is a judicial hack willing to do the bidding of the government. That’s why he is where he is.

    1. Chief Justice Roberts defined the individual mandate to purchase health insurance under the ACA as a tax. Congress can repeal a tax with a simple majority vote. I’m waiting.

      1. I wouldn’t hold my breath.

      2. “Congress can repeal a tax with a simple majority vote. I’m waiting.”

        The Democrats have a Senate majority and Obama can veto anything short of a super-majority.

      3. Don’t hold your breath while you wait.

    2. Looks more like a loose cannon to me. You never know which direction he’s pointed, or what is going to get blown up (or not).

    3. The ongoing saga of the coward John Roberts.

  9. he justified his decision in terms of judicial restraint. “If there are two possible interpretations of a statute,” Roberts wrote, “and one of those interpretations violates the Constitution, the courts should adopt the interpretation that allows the statute to be upheld.”

    Then what exactly, is the point of having judicial review? In fact, what is the point of having a Supreme Court if all it does is rubber stamp whatever the other two branches do?

    1. Exactly.

      I would have said that if there are two interpretations, then Congress had better get back to the drawing board and re-write the law until there’s only one.

      IOW – if I can interpret it as ‘unconstitutional’ then I’m going to.

      But that sort of thing is holding me back from a SC appointment.

  10. Face it, judges are just making shit up at this point. Cover it in flowery language, and write a very long majority opinion that is 20 pages long and watch the dumb ass people follow it blindly. No critical thinking. We still have supposedly smart people still saying “we have NO IDEA what they meant when they wrote the second amendment!!!!”. They think it is some sort of code in which we do not have the ability to translate.

    1. “At this point”? Was there ever a point when they weren’t doing that?

  11. To be authentic, that conclusion was a resounding checkmate for the Obama management, which failed to acquire a separate elect in encourage of its ample case for federal domination.

    Astrology forum

  12. While Roberts isn’t nearly as big a disappointment as David Souter was, it appears that W will go 1-for-2 in picking Supreme Court justices who are actually interested in what the Constitution actually says, just like his daddy.

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