The Constitution v. Roberts

         I often disagree with Justice Ginsburg, but not because I think her qualifications inadequate.  They are not.  My disagreements are not about her background but about her legal reasoning and the conclusions to which it leads.  My disagreements are not about her but her work. 

         The same holds true with my disagreement with Chief Justice Roberts.  His qualifications are stellar.  His legal reasoning is not.  His credentials are impressive.  Everyone agrees.  About his ruling on health care legislation, they do not, not even those who ruled with him, like Justice Ginsburg.

         I find the Chief’s recent reasoning eccentric, even shocking.  I am shocked because I do not recall anything in his legal background that made me anticipate his decision or its alleged justification.   Perhaps such a personal precedent exists and I have missed it.  I miss things every day.  But if his previous work contains such a precedent, then it seems no one noticed it.  No one expected him to rule as he did or for the reasons he expressed.  At least I have found no Court-watcher’s prediction in that direction.

         I am aghast to see Chief Justice Roberts assert that the role of the court is to find ways to make a law constitutional.  I do not recall him advocating this view.  If he did, then I would not, if the privilege were mine, vote for his appointment.  The burden of making a law constitutional belongs solely to the legislature that drafted, debated, and passed it, not the courts.  The courts decide if the legislature succeeded in that task or not.  The courts do not take it upon themselves to do what the lawmakers failed to do.

         In order to do what he says is the court's duty, namely to find a way to make the law constitutional, Roberts had either to sever the individual mandate from the rest of the bill or else alter the fundamental nature of the mandate from "penalty" to "tax.”  He opted for “tax.”  Even Ginsburg, who was on the winning side with Roberts, formally dissented from his calling this a tax.  She and I rarely agree.  Here we do.  Indeed, Roberts’ reasoning is so eccentric that it actually drove Ginsburg into the Scalia, Thomas, Alito, and Kennedy camp against him – a judicial rarity.

         As I see it, the deliberative history of a law is indispensable to assessing its nature, content, purpose, and constitutionality properly.  If, in their debate, the legislators expressly rejected classifying the individual mandate as a tax, and if the legislators insist that calling it a tax means they will not vote for the bill, then the Court must assess the law on those expressly argued and formally articulated grounds.  Instead, the Court, through Roberts, morphed this law into something it is not.  On that point, Scalia was right:  Roberts re-wrote the law from the bench in order to find some way to make it constitutional.

         Nothing in Roberts’ confirmation hearings made me think he would or could do such a thing, much less declare it his solemn duty.   He seems to me to have betrayed his own jurisprudential principles and his own sworn testimony in his confirmation hearings in order to reach this decision, as if stare decisisincluded invoking Benedict Arnold.

         Roberts manipulated the law in order to treat it as a tax.  He then held that the taxing power of Congress is broad enough to rest this newly altered law upon it.  By doing so, he ignored the President and the Congress, who argued strenuously that the individual mandate was not a tax.  Both said explicitly that Congress did not impose a tax; it imposed a penalty for failure to comply with a regulatory mandate.  If the individual mandate is a tax, and if the Supreme Court, not the House, made it a tax, then we stand in transgression of Article I, Section 7.  Further, if it is a tax, then I conclude that the Anti-Injunction Act prevents the Court even from hearing the case, much less deciding it.

         If that is what happened, and if, as some speculate, Roberts’ motive was to prevent the Court from appearing politicized or from having its legitimacy undermined in the eyes of some, he has accomplished the opposite.  If that is what happened and why, then he should resign, period.  He swore to uphold the Constitution, not to prevent folks from thinking his court was or was not political.

         For the second time in a week, the Chief Justice has failed to uphold the Constitution.  The federal government’s constitutional obligation to enforce border security was the victim earlier.