Obamacare

John Roberts' Judicial Abdication

Did the chief justice betray legal conservatism? Not exactly.

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Credit: C-SPAN

American conservatives are furious once again with Chief Justice John Roberts. For the second time in three years, Roberts has led the Supreme Court in saving the Patient Protection and Affordable Care Act from legal doom. In 2012 Roberts upheld Obamacare's constitutionality. Yesterday, in King v. Burwell, he interpreted the law in accordance with the wishes of the Obama administration to allow tax credits to be available in connection with federally established health care exchanges.

Writing at The Week, conservative pundit Matt K. Lewis says "John Roberts abandoned conservatives" in King v. Burwell and abandoned "the conservative legal philosophy [he] is supposed to hold true to."

In a word, no. John Roberts may have infuriated many conservatives, but that's not the same thing as abandoning his conservative legal philosophy. In fact, when you take a closer look, you'll find that Roberts' behavior in the two Obamacare cases is quite consistent with one particular school of conservative legal thought. That school is committed to the idea of judicial deference.

Judicial deference is not necessarily a conservative legal idea. Once upon a time it was broadly accepted by American progressives. But thanks in large part to the massive influence of conservative legal theorist Robert Bork over the past 40 years, deference became a mainstream idea on the legal right. "In wide areas of life," Bork famously argued, "majorities are entitled to rule, if they wish, simply because they are majorities." In the approving words of National Review editor Ramesh Ponnuru, this approach "is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments."

Sound familiar? "It is not our job," John Roberts wrote in 2012, tipping the scales in favor of Obamacare, "to protect the people from the consequences of their political choices." He tipped the scales once again yesterday in King v. Burwell. "In every case we must respect the role of the Legislature, and take care not to undo what it has done."

Whether conservatives like it or not, John Roberts is the heir to a well-established school of conservative legal philosophy.

What's more, conservatives have no business acting surprised about it.

Ten years ago this week, the Supreme Court issued its notorious decision in Kelo v. City of New London, the eminent domain case in which the Court allowed government officials to bulldoze a working-class neighborhood on behalf of a private developer. Given "our longstanding policy of deference to legislative judgments in this field," the Court ruled, it had no choice but to bow down before the city's desire to seize private property.

A few months after Kelo was released, the Senate Judiciary Committee held its hearings on the confirmation of John Roberts to be the next chief justice of the United States. Not surprisingly, Kelo was a topic of much concern among Senate Republicans. They wanted to know if Roberts shared their outrage about the Court's judgment and if Roberts agreed that Kelo was a judicial travesty that should be overturned as soon as possible.

But Roberts was not so quick to concur with that negative assessment. In fact, Roberts argued that Kelo had a silver lining. The Court's ruling, Roberts said, "leaves the ball in the court of the legislature, and I think it's reflective of what is often the case and people sometimes lose sight of, that this body [Congress] and legislative bodies in the States are protectors of people's rights as well."

It was perhaps the single most revealing moment in Roberts' entire confirmation proceedings. The future chief justice had just used Kelo, one of the worst decisions of the 21st century, to make a subtle yet undeniable argument in favor of judicial deference to legislative bodies. If you don't like what your lawmakers have done, Roberts plainly suggested, take your complaint to the ballot box, not to the courthouse.

It was a clear warning sign of the judicial abdication to come.

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  1. So CU was judicial deference? DOMA? Weak tea.

  2. It’s actually judicial hyper-activism, in that he negated the plain meaning of the statute, in order to reach a desired outcome.

    Nothing deferential about it, unless you mean deferential to the executive.

    1. You’re complaining to the wrong guy. Damon likes judicial activism. He’s told readers that many times. You just don’t always get to pick and choose what gets acted on and on what way.

    2. Rewriting the law is pretty much the definition of judicial activism. Roberts has now rewritten Ocare twice in order to save it. I know Root wants to plug his book, but this is just ridiculous.

    3. Technically this is judicial deference to a Congress that no longer exists. The current congressional makeup is different than the one which crafted the law. (Or, should I say, whose lobbyists crafted the law.) This is deference not to Congress but to the White House.

      1. Except it’s not, since he’s carrying out their intentions, sort of, rather than what they passed.

        1. Is he really though, both times now they wrote very specific things into law for very specific reasons. Only later did they realize that the things they wrote for specific reasons would also have consequences. They meant to use subsidies as a cudgel against the states. The states refusing to play along meant that cudgel was being used against them instead. Just because they didn’t intend on harming themselves doesn’t mean they didn’t intend to create a weapon.

        2. No, he’s carrying out the intentions of the Democratic members of Congress who got voted out of office by people angry about Obamacare.

          And since their leader is still in the White House, they’re carrying out the White House’s intentions.

    4. Obamacare is a living, breathing document just like the constitution.

      1. Not to mention constantly changing at the whim of Obama which are unconstitutional.

  3. If you don’t like what your lawmakers have done, Roberts plainly suggested, take your complaint to the ballot box, not to the courthouse.

    Like that has ever worked.

    1. Exactly!
      Can’t wait for the first “I know what is written, but what I meant was…” argument to be heard and denied in direct conflict with this decision. At least they are consistently inconsistent. Onward comrades, the dream of utopia is within our reach. We just need a few more laws!

      1. Even if you take your complaint to the ballot box and actually win, the courts will still interpret the law to mean whatever the king wants it to mean. So it doesn’t matter.

      2. Judicial deference is a cop out: basically, the concept is, if the judges doubt the meaning of the law, and one interpretation is constitutional, and one is not, go with the legislature.

        So, any judge who wants to rule in favor of the government can just say “Gee, I’m too stupid to read, so, I rule in favor of the state.”

    2. And he and the rest of the SCOTUS clowns are there for Life!!!

  4. Judicial deference is variously praised by those whose side doesn’t hold a majority on the court. Clowns deferring to clowns deferring to clowns. That’s our checks and balances now.

    1. “Checks and balances” obviously means “Rubber stamps.”

      /Roberts

      1. Why even bother with having separate branches of government? If the court’s job is validate anything done by the executive or legislative branches, then we might as well just appoint a dictator or toss out the constitution altogether. How this could possibly qualify as a mainstream legal doctrine I’ll never know.

  5. “But Roberts was not so quick to concur with that negative assessment. In fact, Roberts argued that Kelo had a silver lining. The Court’s ruling, Roberts said, ‘leaves the ball in the court of the legislature, and I think it’s reflective of what is often the case and people sometimes lose sight of, that this body [Congress] and legislative bodies in the States are protectors of people’s rights as well.'”

    So the Court’s decision to allow property owners to be screwed opens up an opportunity for legislatures to defend citizens’ property rights as a reaction to said screwing? Does his ACA decision have a silver lining in that it opens up the opportunity for the legislature to overturn this monstrosity since, you know, he won’t do it himself?

    Roberts is the sort of person who, after running over your dog, helpfully explains that now you won’t have to buy dog food anymore.

    1. General Melchett: [explaining why they can’t rescue Captain Blackadder] Now George, you remember when I came down to visit you when you were a nipper, for your sixth birthday? You used to have a lovely little rabbit, beautiful little thing, do you remember?
      Lieutenant George: Flossie.
      General Melchett: That’s right, Flossie! Do you remember what happened to Flossie?
      Lieutenant George: You shot him.
      General Melchett: That’s right! It was the kindest thing to do after he’d been run over by that car.
      Lieutenant George: By *your* car, sir.
      General Melchett: Yes, by my car. But that, too, was an act of mercy when you remember that that dog had been set on him.
      Lieutenant George: *Your* dog, sir.
      General Melchett: Yes, yes, my dog. But what I’m trying to say, George, is that the state young Flossie was in after we’d scraped him off my front tyre, is very much the state that young Blackadder will be in now: if not very nearly dead, then very actually dead!
      Lieutenant George: Permission for lip to wobble, sir?
      General Melchett: Permission granted.

  6. judicial deference to legislative bodies

    It’s one thing to defer, which implies allowing the Legislature to tread heavily on the Constitution, and another to actively assist the Executive, even when the original intent and wording of the legislation differs from the Executive’s interpretation.

  7. If that was Robert’s message (stop with the trivial lawsuits, get off your butt and win an election), I could not agree more. This is the 7th article here in less than 24 hours about the end of the world as we know it…no more rule of law, no more checks and balances, no more constitution…just because even conservative justices disagree with you, no less liberal ones. Time to grow up, stop blaming someone else, and work to get the right people elected.

    Even conservative justices understand that.

    1. The elections were won immediately after the law passed.

      Maybe Roberts should have paid attention to the election results.

      1. No they weren’t. In fact, the last presidential election was a referendum on Obamacare, and repeaters lost. Or don’t you remember Mitt saying the very first thing he would do on the first day is repeal. He lost.

        Now, you need the House (easy enough), the Oval Office (probably won’t happen), AND not just a Senate majority but 60 votes in the Senate. Ain’t happening.

        1. right…that’s why Romney lost.

          1. Mitt “grandfather of Obamacare” Romney.

          2. It’s one of the reasons. There isn’t one poll that supports smile repeal, which is all that Romney called for.

            1. *simple

            2. Jackand Ace|6.26.15 @ 10:09AM|#
              “It’s one of the reasons. There isn’t one poll that supports smile repeal, which is all that Romney called for.”

              Pick them cherries, Jack. If it weren’t for idiots like you, who would we laugh at?

        2. This was about legislative deference supposedly. Obama is not a member of the legislative branch.

          1. My point exactly. He doesn’t want to upset the apple cart. He’s actively avoiding being at the center of the storm, which makes him cowardly above all else.

        3. The last presidential election was “won” through fraud.
          The existence of SCOTUScare was too tenuous after only a couple of years and having to put off some of the provisions because they would cause too much trouble.
          If we had a media that wasn’t so invested in the totalitarian state, it would have been looked into.

      2. Actually, one was won before the law was passed, hence the need to pass it in such a dishonest manner.

    2. We’re aware that you support Bork’s argument in favor of majority rule rather than minority rights. That’s why you’re called illiberal.

      1. Democracy is two wolves and a lamb…

        “In wide areas of life,” Bork famously argued, “majorities are entitled to rule, if they wish, simply because they are majorities.”

        Even most conservatives would call that an incredibly stupid notion.

        1. What better way to rule could be conceived? For the rulers, that is.

          Actual rights of the smelly peasants have zero value and whatever rights you do have that week were voted on by the audience during the last broadcast of America’s Got Toenails.

        2. So, how small a minority should get to decide for everyone else?

    3. Don’t like getting beat up? Tough shit! Grow up, stop blaming someone else, and go form your own gang.

      Yet libertarians are the ones accused of wanting to live in a dog-eat-dog world.

      1. It’s okay to beat innocents provided that you chant about democracy while doing so.

    4. It’s not a matter of agreement or disagreement. The language of the law is clear, as was the intent of the people who wrote it. Also, the Constitution clearly states that the power to write legislation rests with Congress. Whether a person likes or dislikes the outcome, it was clearly arrived at in a manner that is less than honest. Then again, leftists like yourself could care less about honesty or principles, as long as you get what you want.

      1. Exactly. How about the Supremes just do their jobs and interpret and apply the constitution. Don’t they take an oath too?

        1. Neener neener, my toes were crossed!

          /Roberts

    5. This is the 7th article here in less than 24 hours about the end of the world as we know it…no more rule of law, no more checks and balances, no more constitution…just because even conservative justices disagree with you, no less liberal ones

      Jackand Ace, you understand that when you look at a regulation, the meanings of the certain terms are spelled out

      ? 1000.2 Definitions.
      403(c) Program means a non-BIA program
      eligible under section 403(c) of
      the Indian Self-Determination and
      Education Assistance Act of 1975, as
      amended, 25 U.S.C. 450 et seq. and, specifically,
      a program, function, service,
      or activity that is of special geographic,
      historical or cultural significance
      to a self-governance Tribe/Consortium.
      These programs may be referred
      to, also, as ”nexus” programs.

      25 CFR ? 1000.2 [2014]

      So what the court did was say those definitions don’t mean what they say, that is a HUGE deal. How can anyone know what to expect when the court does this? It isn’t that someone doesn’t agree with us, it is that they undermined the entire foundation upon which law rests. That is the big deal.

      1. Ivan, I get that it’s a big deal to you. Fair enough. But libertarian Damon supports judicial activism, and most here did not take him to task in the past. Rand supports it to. Now, it’s just crocodile tears.

        I said this yesterday, if this is so important and the end of the world, I’m guessing given the comments, hundreds of people will be actively working to make sure Hillary does not get elected. Comments on blogs isn’t that. Let’s see if that happens…Roberts is telling you it better.

        1. Jackand Ace, what does it matter to vote in Congressmen if the court ignores what is written in the law? Congress put the definition into the law, and Roberts ignored that definition; how is voting for someone to rewrite the law supposed to fix that? Impeach the chief justice, not likely to happen. This is what has people upset, not that they got outvoted, but that Roberts failed to uphold his oath.

          1. Fair enough.

            1. Wow, Jack, Ivan actually got through to you — there may be hope for you yet.

          2. Yep – he basically said the Executive Branch and the Bureaucracy can interpret laws any way they want.

            1. Why bother having laws if the people who enforce them can say that the law means something that it obviously does not say?

              1. Gotta keep up appearances.

            2. “Yep – he basically said the Executive Branch and the Bureaucracy can interpret laws any way they want.”

              Effectively, making laws irrelevant.
              If Obo claims a law supposedly written about, oh, trade agreements means he can throw people in jail for disagreeing with him, why, Roberts can easily claim that was the intent.

      2. No, they didn’t rule that the definition was wrong. Rather, they ruled on the substantive question that when fedgov establishes “such exchange” it carry the same privileges as one established by a state.

        1. Except the plain text, and the explanation of why it was written that way, said something different than what Roberts ruled.
          He is the main subject, here, because there are four ideologues on the court who will rule for communism, ever time.

    6. Time to grow up, earn your keep, and stop expecting government to subsidize you. See how easy that is?

  8. According to Roberts’ judicial philosophy, what’s the point of the judiciary hearing any case that involves another branch of government? I mean, if there is a “case or controversy,” don’t expect the Court to, you know, deal with it.

    It’s like, if a mob plans to attack you, don’t try to defend yourself or call the police. Take a vote!

  9. “It is not our job,” John Roberts wrote in 2012, tipping the scales in favor of Obamacare, “to protect the people from the consequences of their political choices.”

    As direct a contradiction of his ruling in King as Root’s alt-text is to humor.

  10. Government is out of control.

    1. And?

      I couldn’t read that.

      a. It’s too long. and
      b. It’s written in lawyer.

      1. States must honor same-sex marriages conducted in other states.

      2. Held: The Fourteenth Amendment requires a State to license a marriage
        between two people of the same sex and to recognize a marriage
        between two people of the same sex when their marriage was lawfully
        licensed and performed out-of-State.

        1. Not surprised at the first part, but am somewhat surprised on the second.

          Does this mean that CCWs issued in one state must now be recognized in another state?

          1. I had it the other way around. I’m not surprised they are forcing one state to recognize a marriage contract from another state. Shocked they are forcing states to issue the licenses.

            It would be nice to force NJ to recognize a Utah carry permit – but I don’t want to give up a decade of my life to be the test case.

            1. I haven’t read the decision and probably won’t, but equal protection was pretty much a done deal. But the full faith and credit was surprising because if scotus is consistent (stop laughing) CCWs would be reciprocal as well.

        2. The Fourteenth Amendment to the U.S. Constitution? Is that part of the secret 6th section?

        3. I have a hard time believing that legalizing gay marriage was the intention of people that passed 14A. Intentions are still what matters right?

    2. I know there is going to be some positive commentary on this, but it is a defeat for federalism, while a victory for something akin to “civil rights.” Bittersweet.

      1. It’s a victory for taxpayers inasmuch as it decreases (or keeps from increasing) the income tax of many of them. It’s important to keep in mind that that’s what the case was about. IRS was the defendant.

    3. Chief Justice Penaltax, in his dissent, tells us that the court is not a legislature. Did he have his sense of shame surgically removed?

      1. Yeah, he looks like he could turn himself inside out with all the contortions he has been going through this week.

  11. This outta be fun

  12. That school is committed to the idea of judicial deference.

    THEN WHY EVEN FUCKING BOTHER? What is your purpose in even being there? You’re literally worthless at that stage.

    Seriously, don’t even bother showing up if all you do is kneel and kiss the ring.

    1. No no, they play a very valid role. They take part in the ceremony. And the ceremony is important for convincing everyone that all is well.

      1. The forms must be obeyed. The substance can get fucked.

    2. Appearances must be maintained. Popehat’s column seems appropriate here:

      The Court of Appeals’ rule would neither preserve nor enhance the traditional functioning of the grand jury that the “common law” of the Fifth Amendment demands. To the contrary, requiring the prosecutor to present exculpatory, as well as inculpatory, evidence would alter the grand jury’s historical role, transforming it from an accusatory body that sits to assess whether there is adequate basis for bringing a criminal charge into an adjudicatory body that sits to determine guilt or innocence. Because it has always been thought sufficient for the grand jury to hear only the prosecutor’s side, and, consequently that the suspect has no right to present, and the grand jury no obligation to consider, exculpatory evidence, it would be incompatible with the traditional system to impose upon the prosecutor a legal obligation to present such evidence. Moreover, motions to quash indictments based upon the sufficiency of the evidence relied upon by the grand jury have never been allowed, and it would make little sense to abstain from reviewing the evidentiary support for the grand jury’s judgment while scrutinizing the sufficiency of the prosecutor’s presentation.

      In other words, the grand jury is a rubber stamp for the prosecutor but must be maintained anyway.

  13. In every case we must respect the role of the Legislature, and take care not to undo what it has done.

    Except that’s precisely what Roberts did in King v. Burwell. The legislature specified state exchanges. Roberts and the majority changed that specification. That’s the problem with making Roberts’ position here one of deference. Hell, the eloquent rejection of Roberts’ position was written by Scalia, hardly a standard-bearer of judicial activism.

  14. so he is ok with not declaring something unconstitutional? who is that power left up to, the states? then what about within the states, the people? he strikes down doma and vra but not this?? maybe because of their age?

  15. “In every case we must respect the role of the Legislature, and take care not to undo what it has done.”

    /facepalm

  16. Another SC decision:

    From SCOTUSblog: Court holds that imposing an increased sentence under the Armed Career Criminal Act’s residual clause violates due process.

    This case was originally argued last fall. It arises out of the Armed Career Criminal Act, which imposes a mandatory minimum sentence of fifteen years on a federal firearms offender who has three convictions for a “violent felony.” The question before the Court was whether possession of a sawed-off shotgun constitutes a violent felony. After oral argument, the Court ordered new briefing and re-argument on a second question: whether the part of the ACCA (known as the “residual clause”) which outlines what kinds of crimes should be treated as violent felonies is unconstitutionally vague.

  17. If Congress passed a law to summarily execute the Supreme Court justices, I wonder if they’d find that law to be in violation of any constitutional provisions…

  18. As the Bobs might ask, what is it you say you do here, John?

  19. “It is not our job,” John Roberts wrote in 2012, tipping the scales in favor of Obamacare, “to protect the people from the consequences of their political choices.”

    And yet that’s exactly what he did in King v. Burwell. The people acting through Congress, enacted a law that provided for no federal subsidies in states that hadn’t set up exchanges. That was supposed to give the states a nudge to set up exchanges, based on the assumption that no state government would risk the wrath of its voters by depriving them of the opportunity to get a subsidy. When it turned out that Congress had miscalculated how the incentives would work in practice, Roberts and his colleagues stepped in to save the congresscritters from the consequences of their mistake.

  20. I didn’t realize “deference” meant not reading the laws as written and interpreting them as such.

    1. Then how do you interpret what it means when it commands HHS to establish “such exchange”? If the purpose of the state-established exchanges is to sell insurance so buyers can claim a tax credit on it, what’s the purpose of the substitute exchanges HHS is to establish in their place? It can’t be just to allow the sale of insurance, because that was allowed previously. Isn’t it logical that they’d want the federal ones to convey the same privilege as the state-established ones?

  21. Interesting article, but in light of Robert’s recent decisions it would have been more instructive during his confirmation hearings to determine how he would have rewritten Kelo to make it more palatable. Rewriting substandard legislation is the job of the judiciary after all.

  22. 1. If you buy insurance by an exchange established by your state, you get something off your income tax.

    2. If your state doesn’t establish an exchange, fedgov is commanded to establish such an exchange.

    Since the law says both those things, wouldn’t you think you’d get something off your income tax for buying insurance on the exchange established under provision #2?

  23. The next time someone on Obamacare complains to me about having to drive to Mexico to get dental work and glasses, I’m going to quote John Roberts.

    “It is not our job,” John Roberts wrote in 2012, tipping the scales in favor of Obamacare, “to protect the people from the consequences of their political choices.” He tipped the scales once again yesterday in King v. Burwell. “In every case we must respect the role of the Legislature, and take care not to undo what it has done.”

  24. John Roberts, just one more reason to hate George W. Bush

  25. He had to have put his finger on the scale on one of his decisions because, in the homosexual “marriage” case, it was voters who decided they wanted it to be a man/woman thing, and judges, that said it shouldn’t.

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