General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region Forums"John Roberts Is No Hero" - from Slate, same date as the decision
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http://www.slate.com/articles/news_and_politics/jurisprudence/2012/06/john_roberts_is_hardly_the_hero_and_judicial_statesman_people_make_him_out_to_be_.html
[font size=5]John Roberts Is No Hero[/font]
Why our crush on the chief justice is sillyand undeserved.
By Jeff Shesol | Posted Thursday, June 28, 2012
The second biggest surprise of the day, after the survival of the Affordable Care Act, is that weve never really gotten over our collective crush on John Roberts. How else to explain todays 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, weve held it in our hearts; weve written it in our diaries, remembering every one of those sweet nothings he once whispered about common ground and humility. [FONT style="BACKGROUND-COLOR: yellow"]No, we never really gave up on Roberts. Not[/FONT] during that long judicial bender he took with the boysNino, Clarence, Tony, and Sam; not during the Citizens United argument, [FONT style="BACKGROUND-COLOR: yellow"]when he called the government big brother; not when he swept away a centurys worth of campaign finance regulations.[/FONT] So complete is our swoon, in the afterglow of the ACA ruling, that Bob Shrum has written that if Roberts had been Chief Justice in 2000, Bush v. Gore might have gone the other way.
Todays outcome, to be sure, is worth celebrating. But the lionization of John Roberts does not withstand a reading of [FONT style="BACKGROUND-COLOR: yellow"]his opinion. Its first 30 pages, in tone and in substance, differ little if at all from Justice Scalias treatment of the same issues in his dissent[/FONT]: 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 opinionnot the discussion of the taxing power, which actually decides the casethat 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 ones 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 governments 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 [FONT style="BACKGROUND-COLOR: yellow"]Justice Ginsburg and the courts liberals, in their concurring opinion, make clear what is really happening here: The establishment of a newly minted constitutional doctrinea sort of de facto, save-it-for-later majority opinion, effectively endorsed by the four dissenters.[/FONT]
So for all the real cause for celebration today, and for all the encomiums to Roberts humility, his restraint, and his willingness to rise above ideology, it is worth remembering [FONT style="BACKGROUND-COLOR: yellow"]what judicial statesmanship actually looks like[/FONT]. It can be found in the opinion of Chief Justice Charles Evans Hughes in N.L.R.B. v. Jones & Laughlin Steel Corp., the landmark [FONT style="BACKGROUND-COLOR: yellow"]1937 case that put an enduntil todayto the rigid, abstract formulas that had long defined Commerce Clause doctrine[/FONT], and thereby brought the court, and the nation, fully into the 20th century. [FONT style="BACKGROUND-COLOR: yellow"]Hughes, grounding his decision in both constitutional principle and actual experience,[/FONT] rebuked conservatives for asking the court to shut our eyes to the plainest facts of our national life. As [FONT style="BACKGROUND-COLOR: yellow"]Justice Ginsburg points out, actual experience finds little place in Chief Justice Roberts opinion today[/FONT]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 factsor metaphysics?
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BootinUp
(47,200 posts)Wounded Bear
(58,726 posts)I have no illusions that Roberts has converted to liberalism. He's still a corporate hack IMHO.
UTUSN
(70,755 posts)My own take is that he and KENNEDY made a deal:
That ROBERTS would take the heat off of KENNEDY as the #5 vote,
that KENNEDY would write a dissent that went ALL THE WAY further saying the WHOLE law was unconstitutional, and
that ROBERTS could take the main message away from the 4 Libs by writing the main decision with his own spin on top of the Libs versions.
That way, KENNEDY and ROBERTS, both of them together, had control over both sides of the written decisions.