Outcome-Based Jurisprudence - The American Spectator | USA News and Politics
Outcome-Based Jurisprudence
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Are John Roberts’ conservative critics more interested in the results than the law? Before the July 4th holiday, some of his conservative and libertarian defenders made that case. Matthew Franck tees off on Jan Crawford’s Roberts vote-switching story:

But what does Crawford actually claim to know?  Just the following:

  • that Roberts held one view in March, and a different one in May;
  • that one or more of the four conservative justices, notably including Kennedy, tried to win him back to their view;
  • that a month of trying to persuade him failed;
  • that Chief Justice Roberts “pays attention to media coverage.”

That’s it.  Sadly, for such a talented (and obviously well-placed) reporter, Crawford seems to work hard to achieve a certain effect in her story, namely that Roberts decided as he did for reasons that had nothing to do with the merits of the arguments in the case.

Doug Mataconis concurs, writing:

One need only look at the gun control cases (District of Columbia v. Heller and Chicago v. McCormack) or Citizens United for evidence of that. Why would he suddenly be so concerned now about what the media elite or the New York Times Editorial Board thinks of him or the Court?

First, the gulf between the Kennedy-Scalia-Thomas-Alito (and maybe Roberts?) opinion and Roberts’ final destination is pretty wide. It’s a big swing within a relatively short period of time from someone whose overall judicial philosophy appears to have remain unchanged. If on top of that you think his reading of the statute is strained, not an act of judicial restraint, and not as persuasive as the rest of his opinion, it’s natural to ask whether he was trying to force this conclusion.

Second, the examples of Heller and Citzens United cut both ways. They reveal Roberts is willing to strike down laws and portions of laws he clearly finds unconstitutional rather than err on the side of judicial restraint. But gun control and campaign finance reform, as important as they remain in some circles, have receded as political issues compared to health care reform. There is simply no comparison between McCain-Feingold or the restrictive gun laws of liberal cities and the signature domestic legislation of the sitting president of the United States.

But while it’s intellectually interesting to speculate why Roberts voted the way he did, ultimately what matters is how he voted. A lot of legal conservatives, perhaps including Roberts, apply originalism and textualism in a very limited way. If you understand the entire Constitution to be saying that whatever the federal government isn’t authorized to do is prohibited, you don’t have to be results-oriented to realize that the number of constitutionally acceptable results is limited.

Bob Tyrrell takes a different view, and Roberts will look like a genius if the health care law ends up being repealed without the Supreme Court being pulled into a political morass. But if you understand the Constitution to be establishing a federal government with powers that are few and defined, this really wasn’t a close call.

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