Feature
The Wages of Crying ‘Restraint’
How John Roberts ended up as America’s Big Chief.
(Page 3 of 3)
And so it came to pass that, in NFIB v. Sebelius, the constitutional theory held by 99 percent of all law professors—that Congress had a plenary power to adopt any means to effectuate a scheme of economic regulation—could not command five votes on the Supreme Court. Instead, five justices affirmed the position that 1) the commerce power of Congress was limited, 2) the Court would enforce these limits, 3) the individual insurance mandate exceeded these limits, and 4) the Necessary and Proper Clause did not provide an escape from these limits. Compelling individuals to engage in economic activity was an “improper” means of executing Congress’ power over interstate commerce. As an added bonus, the Court also held 7–2 that Congress had exceeded its spending power when it threatened to withhold all Medicaid funding from States that did not “agree” to a massive expansion of the program.
All this was a vital victory for the Constitution, especially because accepting the government’s theory for the mandate’s constitutionality would have been disastrous. But having affirmed all this, the conservative philosophy of judicial restraint kicked in to deprive us of our objective: getting rid of Obamacare.
According to reports, having voted to invalidate the individual insurance mandate in the first conference vote after oral argument, Chief Justice Roberts changed his vote to uphold the law. And he changed his vote only after the Court was bitterly attacked by the left when, after oral argument, it appeared that the ACA was in trouble. On the Monday following argument, President Obama complained that “for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint— that an unelected group of people would somehow overturn a duly constituted and passed law.”
Later, the critics’ fire was trained on Roberts in particular. After praising the “judicial restraint” favored by some conservatives, Jeffrey Rosen wrote in the New Republic: “This, then, is John Roberts’ moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace.” Were the Roberts Court to invalidate the ACA in a 5–4 vote, “then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure.” Not only that, but “by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance.”
SO THERE
YOU HAVE IT. Chief Justice Roberts, whom Rosen now calls the “big
Chief,” picked the New Deal model of judicial restraint over
holding Congress to its enumerated powers. After finding the
mandate unconstitutional under the Commerce and Necessary and
Proper clauses, he then gave the statute a “saving construction” by
eliminating the “requirement” part and upholding the remaining
“penalty” as a tax because it was too low to coerce compliance. So,
instead of unconstitutionally requiring all Americans to buy
insurance, which he admitted was the obvious and natural reading of
the statute, Roberts rewrote the law to give Americans the “option”
of buying insurance or paying the “tax.” According to Rosen,
“Roberts had decided to protect the long-term institutional
interests of the Court rather than embrace the conservative
ideological agenda in its most radical dimensions.”
So the good news is that, 70 years after the New Deal, there were just four votes for the progressive’s vision of unlimited federal power to address any national problem. But the bad news is that, some 30 years after Ronald Reagan started nominating judges to the bench, the Supreme Court could only muster four votes to invalidate a law that five justices had concluded exceeded the enumerated powers of Congress, because the fifth vote buckled under the self-imposed duty of judicial restraint. That a majority of Americans believed that the mandate was unconstitutional, and that the Court would so rule, was not ultimately as important as what Jeff Rosen and others on the left would say.
Now we will have an election to decide the ultimate fate of Obamacare. But this election should also be about who will be selected to serve on the Supreme Court. Should Republican presidents continue to nominate judicial conservatives who are enthralled with the New Dealers’ mantra of judicial restraint? Or should they nominate constitutional conservatives who believe that it is not “activism” for judges to enforce the whole Constitution? All future nominees should be vetted not only for their views on the meaning of the Constitution, but for their willingness to enforce that meaning.
For over two years, the nation was given a wonderful lesson in constitutional law: the enumerated powers have limits that Congress can exceed. In June, the electorate was given a different lesson in judicial philosophy: judicial restraint in enforcing these limits is no virtue. In November and beyond, we will see how well these lessons were learned.
Letter to the Editor View all comments (30) | Leave a comment
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aware| 9.28.12 @ 6:36AM
"As president, Mitt will nominate judges in the mold of Chief Justice Roberts..."
Pasted directly from mittromney.com
I just love when the stupid Statists are hoisted on their own petard.
PCPSmokerII| 9.28.12 @ 10:01PM
Time to leave that shit behind, you worthless punk. If Obama wins, because of assholes like you, we'll get more Elena Kagans. Wake the fuck up, Ron Paul kook.
aware| 9.29.12 @ 7:10AM
Leave it behind? Maybe you should tell your "champion", he's the one saying it. You just can't face the horrible reality that the worst days of your life are just about on you. And you deserve it along with the rest of the Americanus Boobus.
Surely you smart "conservatives" can manage to drag your banker stooge over the finish line without us "kooks". After all, you're always claiming to be the "majority". Prove it.
I woke up about 10 years ago when I realized both Democrats and Republicans are all part of the same criminal gang, and that "elections" have absolutely no chance of changing that.
But be my guest, keep trying the same old thing and expecting different results.
PCPSmokerII| 9.30.12 @ 3:09PM
No conservative, no liberty loving libertarian, no one who is not a leftist would ever refer to a candidate as a "banker stooge."
America's worst days are ahead, I see that very clearly. But with kooks and shit like you the job just went from hard to impossible.
aware| 10.1.12 @ 6:26AM
You obviously don't know who actually runs this nation. You think a President, any President, has control over the economy? You still believe in "We the People" after TARP? After QE infinity? After years of ZIRP?
Yes the worst is yet to come, no matter election outcomes, but you have wasted a few years already by not educating yourself as to how and why. You are enmeshed in the false paradigm of Left/Right but why did the "Right" expand the Welfare State under Bush and the "Left" expand the Police State under Obama? What is your explanation for this?
Don't you even notice that no matter which "side" wins the grip on your throat tightens? Or that the explosive growth of the Leviathan has been unhindered for a hundred years?
Yet you still play the game controlled by a Shadow Elite with outcomes predetermined? Always "hoping" that the next election will make a difference even as the last one didn't? You can't face the fact that you are powerless against wickedness in high places.
Aristocat| 9.29.12 @ 6:12AM
"So, perhaps Conservatives did make a tactical mistake in not pointing out the real issue - Federal Supremecy at the expense of Constitutional Federalism. But, that doesn't get Roberts and the Progressives off the hook."
Yes, just so...It was a big mistake to focus on the mandate...the entire law was unconstitutional for many reasons....
Roberts will go down in history as a coward and a traitor...He took an oath to uphold the Constitution, not to please the NY Times...
Shame on you Roberts, you pathetic coward.
Martin kzovich| 9.28.12 @ 7:17AM
So in essence all the Left has to do is bark and Jophnny Baby jumps. How pathetic is that ?
Alej| 9.28.12 @ 9:02AM
"...Supreme Court could only muster four votes to invalidate a law that five justices had concluded exceeded the enumerated powers of Congress, because the fifth vote buckled under the self-imposed duty of judicial restraint. "
The fifth buckled by virtue of a telephone call from the Oval Office.
TLP| 9.28.12 @ 10:29AM
The Contest is at Mr. Purple's House.
Who Knows?| 9.28.12 @ 10:30AM
Who decides where each justice sits or stands in those pictures of the nine lawyers, called the SCOTUS?
The Chief?
Indy| 9.28.12 @ 11:00AM
So much for calling balls and strikes...
JP| 9.28.12 @ 11:11AM
I think Mr. Barnett confuses judicial restraint with federal restraint. For, beginning with FDR almost all SCOTUS opinion's expanded the reach of the federal government. Whether the Court used "penumbras" to remove federal constraints, or endorsed the growth of federal powers, the results were the same - increased federal power at the expense of the states and individuals. In some exceptions, usually those dealing with "expression" (ie porn), the Courts were Libertarians. But, even in those cases, the Courts made clear the supremecy of the federal government over all others. The Federal Judiciary, when it does defer to Congress, does so at the expense of the local and state governments and individuals. It rarely, if ever, does the opposite.
Robert's in no way showed restraint, as he gave Congress the right to force individuals into commerce in order to meet illusuory demands of "general welfare". And Roberts knows has well as anyone that "the people" didn't want ObamaCare; but Progressives did.
So, perhaps Conservatives did make a tactical mistake in not pointing out the real issue - Federal Supremecy at the expense of Constitutional Federalism. But, that doesn't get Roberts and the Progressives off the hook.
C. Vernon Crisler | 9.28.12 @ 1:55PM
Yes, this was such a stupid article I stopped reading it halfway through. Do AmSpec editors no longer look at what its contributors are writing?
Judicial restraint as conservatives use it means restrained by the Constitution, the exact opposite of Progressive extravagance. The nitwit Roberts simply failed to do his Constitutional duty.
Gary B| 9.28.12 @ 10:05PM
Yes, exactly!
Gary B| 9.28.12 @ 10:09PM
And, how many times, especially in California, have the people had a referendum (direct democracy) overturned by a non-elected panel of "judges" who twisted the law like a pretzel to assure a progressive outcome? As Sarah Palin like to say, "How's that workin' for ya'?"
RCV| 9.30.12 @ 4:30PM
A little contradictory, no? If Judges owe their first allegiance to upholding the Constitution, then they must strike down laws which violate it, whether enacted by a legislative majority or a majority of voters.
Stan Redmond| 9.28.12 @ 12:06PM
Justice Roberts is in the same category of of Bart Stupak when it comes to people that disgust me. Spineless wimps that helped pass one of the most dangerous and liberty stealing laws ever to fall on this country.
Gary B| 9.28.12 @ 10:10PM
Roberts is damned lucky he lives in a civilized country.
PolishKnight| 9.28.12 @ 3:02PM
As upset as I was at the Robert's ruling, I also looked at it philosophically as him telling a harsh truth we need to deal with:
If Democrats win enough elections and pack enough immigrants and welfare recipients into the voting booths, then the Holy Constitution isn't going to save us and we don't exist to protect it. We're what matters. And the left, to their credit, is good about reminded their identity groups of their interests.
When the left has successfully taken over government, and the electorate, then they define what the Constitution really means. Deal with it.
Thom| 9.28.12 @ 4:07PM
If the existing Constitution/Bill of Rights were submitted for ratification through the existing amendment process today it would not pass. If everything up to but not including the 16th amendment and beyond were submitted it wouldn't make it out of Congress. The check and balance provided by the "several states" (9th/10th Amendments) was mostly destroyed in the 1860s; the 17th amendment destroyed the rest of the "several states" powers and purpose. The 16th amendment destroyed the central concept of a "republic" and invalided the 13th amendment prohibition on involuntary servitude. The Equal Protection Clause of the 14th amendment is moot once you start treating a person's economic output separately/differently from other property rights and citizens. All the rest is just icing on a melting cake whose foundation has been undermined by a century of lawyer-istic complexity worship and made meaningless to the common men of our time and alien to the common men that ratified the documents in the first place.
The Supreme Court is a useless appendage in a "Democracy".
C. Vernon Crisler | 9.28.12 @ 5:24PM
'The check and balance provided by the "several states" (9th/10th Amendments) was mostly destroyed in the 1860s'
Not correct...
Alej| 9.28.12 @ 9:32PM
Bullshit, Crisler. Abraham Lincoln.
You want to debate more ? The bastard turned federalism into what we have today. Centralized government. I hope he's burning in hell.
PCPSmokerII| 9.28.12 @ 9:59PM
Go read your racists Ron Paul newsletter, you worthless piece of shit. I hope you and your mother die of cancer. Son of a whore.
aware| 9.29.12 @ 7:13AM
Yeah, a perfect example of the intellectual aspects of modern conservatism. A Dittohead no doubt.
RCV| 9.30.12 @ 4:34PM
Which is why, Alej, the majority of the American people - who don't consider Abraham Lincoln "a bastard", but instead regard him as one of a handful of the greatest Presidents - will continue to reject the political views of you and your ilk.
Thom| 9.29.12 @ 12:18PM
How many of the Southern States voted for the 13, 14, 15th amendments? The Constitution starts out stating the Federal powers are limited to what is enumerated and the 9th and 10th amendments add a punctuation mark to that along with 73 years of practice before 1860. What took place between 1861 and 1865 is just a Mob four times more powerful telling 11 of those “several states” that all the words about limited Federal powers and rights reserved to the “states” along with their sovereign state governments were just a bunch of hooey. They really didn’t mean what they signed in 1787 and 1791 was the message loud and clear. The “several states” created and ratified the documents that founded the Federal system without a gun being put to their heads and a boot on their necks. Those understandings died along with over 620,000 men because the clearly written words in the Constitution meant nothing when put to the test. It has been downhill for the “several states” ever since. Numbers of men with arms means something not words is what the “rule of law” means today.
Thom| 9.28.12 @ 6:23PM
When has the “several states” since the 1860s won a Court argument about powers reserved to the “states” that aren’t enumerated in the Federal Constitution? Just one meaningful case Vern.
Trinacria| 9.28.12 @ 6:38PM
If I chip in a grand for the Am Spec fundraiser, will someone please hire an editor for Mr. Barnett?
Additionally, would someone please kindly inform Mr. Barnett that judicial restraint refers not to "restraint" from ruling against congressional legislation, but rather the obligation to review the legality of such legislation with due regard to the boundaries of the Constitution. In other words, judicial restraint - properly understood - should have "restrained" Justice Roberts from straying from the Constitutional question at hand to salvage legislation that couldn't be supported by the defendant's argument.
PCPSmokerII| 9.28.12 @ 9:52PM
Borning, long, and stupid. Mark Levin said it best. Robert's decision (unspecified federal tax, labels, not tax for the purpose of anti injection, tax for mandate) is incoherent. Then again, taking freedoms away from free people has no legal or morale rationale.
Fuck Barnet. He's a scumbag.