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Monday, July 02, 2012

Trust Me, Chief Justice John Roberts Isn’t A REAL Hero!

Trust me, Chief Justice Roberts isn’t a hero

The second biggest surprise of the day Thursday, after the survival of the Affordable Care Act, is that we’ve never really gotten over our collective crush on John Roberts. How else to explain the outpouring of praise, not merely for the decision but for the man himself, for his statesmanship and judicial modesty? All these years, it now appears, we’ve held it in our hearts; we’ve written it in our diaries, remembering every one of those sweet nothings he once whispered about “common ground” and “humility.”

No, we never really gave up on Roberts. Not during that long judicial bender he took with the boys – Nino, Clarence, Tony, and Sam; not during the Citizens United argument, when he called the government “big brother”; not when he swept away a century’s worth of campaign finance regulations. So complete is our swoon, in the afterglow of the ACA ruling, that longtime Democratic political consultant Robert Shrum has written in the Daily Beast that if Roberts had been Chief Justice in 2000, Bush vs. Gore might have gone the other way.

Thursday’s outcome, to be sure, is worth celebrating. But the lionization of John Roberts does not withstand a reading of his opinion. Its first 30 pages, in tone and in substance, differ little if at all from Justice Antonin Scalia’s treatment of the same issues in his dissent: Before getting around to sustaining the act, Roberts pauses, at length, to obliterate the idea that the individual mandate was a legitimate exercise of the commerce power. Tellingly, it is this section of the opinion – not the discussion of the taxing power, which actually decides the case – that Roberts invests with moral force (”that is not the country the Framers of our Constitution envisioned”) and fills with quotable, memorable lines (“the Framers gave Congress the power to regulate commerce, not to compel it”).

In Roberts’ (and the dissenters’) world, refusing to pay for one’s own health care, shifting the cost to everyone else, is “doing nothing”; its effects are merely “metaphysical.” He has given himself over, wholly, to the novel distinction between “activity” and “inactivity” proposed by Randy Barnett, Paul Clement and the tea party, following them all down the road of reductio ad absurdum: today, health care coverage; tomorrow, broccoli; and before long, “a general license to regulate an individual from cradle to grave.”

Never mind that this is irrelevant to the case at hand, since the ACA can be (and now has been) sustained under the government’s power to tax. Roberts insists, implausibly and a bit defensively, that he has to settle this Commerce Clause business before he can even consider “saving” the ACA on other grounds. But Justice Ruth Bader Ginsburg and the court’s liberals, in their concurring opinion, make clear what is really happening here: The establishment of “a newly minted constitutional doctrine” – a sort of de facto, save-it-for-later majority opinion, effectively endorsed by the four dissenters.

So for all the real cause for celebration this week, and for all the encomiums to Roberts’ humility, his restraint, and his willingness to rise above ideology, it is worth remembering what judicial statesmanship actually looks like. It can be found in the opinion of Chief Justice Charles Evans Hughes in N.L.R.B. vs. Jones & Laughlin Steel Corp., the landmark 1937 case that put an end – until Thursday – to the rigid, abstract formulas that had long defined Commerce Clause doctrine, and thereby brought the court, and the nation, fully into the 20th century. Hughes, grounding his decision in both constitutional principle and “actual experience,” rebuked conservatives for asking the court to “shut our eyes to the plainest facts of our national life.” As Ginsburg points out, actual experience finds little place in Roberts’ opinion – in his rendering of an alternate reality where health care coverage is analogous to a buying (or forgoing) a Buick, and in which the decades-old problem of the uninsured is mostly just a matter of “young adults” with “other priorities for spending their money.” Plain facts – or metaphysics?



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