Prefabricated punditry saves the Court

After reading the opinion in National Federation of Independent Business v. Sibelius, slip op. (June 28, 2012), I was tempted to make some written observations. In the hour or so it took to carefully read the Chief Justice’s opinion, Justice Kagen’s concurrence and Justice Kennedy’s dissenting opinion, the internet and broadcast airwaves were already saturated with purported analysis, all stemming from a simple observation: who voted for what provisions and who did not. It was all, in short, a political interpretation. And the concensus was that Justice Roberts “saved the Court.” It took me aback, because that wasn’t what I had taken away from reading the opinions.

You don’t need to read all the initial blatherings to find the consensus that formed. You need only listen to David Brooks on Friday’s “All Things Considered.” Brooks was in Aspen at the “Ideas Institute” and we can only hope he was there to purchase wholesale, because his discussion this afternoon shows that he really doesn’t have a fully formed one. In fact, Brooks offered several half-formed thoughts, which at best clash with each other. But you should listen to him because you really can’t enjoy the flippant self-assuredness that only a prep school can confer on someone who doesn’t have a grasp on what he is talking about. Brooks made these points: 1) The decision “energized” him; 2) He was glad the Chief Justice sided with the four liberals because it showed the Court wasn’t political; 3) He wished the decision would have gone the other way; 4) He wasn’t persuaded by the logic of the Chief Justice’s decision;  5) He is part of the “thoughtful” segment of the conservative monolith, the part that believes that courts should defer to the legislature on questions of policy unlike the Tea Party (but he didn’t get a chance to say what their belief was). His criticism of the Patient Protection and Affordable Care Act is that it doesn’t address the fundamental problem of health care; namely, the fee for service basis of funding. (He omits the problem of private insurers collecting the funds and deciding how to spend them.)  It was a shame that no one was interested in an elaboration of this idea, one that would require so much government intervention that it would make Obamacare look like  something written by the Heritage Founation. (Oh, wait …)

Brooks illustrated the flat-footedness of the middle brow analysts, all of whom see every act by government as a victory for the winning “team.” They had already set up the terms of this drama, and so were rendered stupid by the event. The expected narrative of all important Supreme Court decisions is: The Court is made up of two unthinking blocs: one “liberal” and the other “conservative.” Four justices comprise each group. Justice Anthony Kennedy is the only one not a member of either group and thus is the only one who is subject to persuasion. No one can tell why he chooses one over the other in any particular case.

Imagine the consternation of these professional talkers when it was the Chief Justice, John Roberts, who joined the liberals and Justice Kennedy went over to the conservatives. They had to find a political reason for it. They decided that the Chief Justice swallowed his jurisprudence in order to cross-over to show that the Court was not political, to repair its badly frayed image and possibly to plant the seeds for the destruction of the Commerce Clause as a basis for Congressional legislation.

One could make up a story that the Chief Justice was acting with the kind of strategic statesmanship of the great, original, deep-thinking Chief Justice, John Marshall. Marshall was at the beginning of his career when Tbomas Jefferson was elected president. Anti-federalists like Jefferson had a strong distaste to judges interfering with legislation and executive action. This had more to do with the fact that the judges in England and the US were uniformly and some times oddly conservative (in the US federal judges had been appointed by Washington and Adams, who appointed Federalists) rather than a strong preference for pure democracy.

At the end of Adams’ presidency, with the prospect of sweeping change with the advent of the Jefferson administration, Adams hurriedly signed commissions for justices of the peace (what the anti-federalists called “Midnight Judges”). But because his Secretary of State (it was John Marshall himself) had been appoiunted chief justice, the commissions were not properly delivered. On taking office, Jefferson vowed to disregard the commissions and appoint his own judges. One of the disappointed office-seekers, William Marbury, sued for his commission. It was before the Supreme Court as an original matter pursuant to an act of Congress providing for jurisdiction to issue writs of mandamus in such circumstances.

Now it would have been a disaster for Marshall’s view of the Court’s role, if it ordered the delivery of the commission and the president refused to comply. Yet, Marshall was able to use the case to establish judicial supremacy without risking the confrontation. The court examined the Constitution’s provision for the Court’s jurisdiction, and although it was a matter that came within the jurisdiction of federal courts, it was not a matter that the Constitution specified for the Court’s original jurisdiction (as opposed to its appellate jurisdiciton). Therefore the law was unconstitutional (Congress cannot give the Court jurisdiction that the Constitution did not provide), and the case was dismissed.

In the course the decision the Court in Marbury v. Madison, 5 U.S. 137, 177-78 (1803), made the formulation still quoted today for judicial supremacy:

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”

The federalists lost the job for Marbury but in the end established the role of the Court. This interpretation of Marshall’s opinion is known to every law student (and used to be known to most high school students of American history).

Did Roberts do something like that here?

Everyone thought that the decision would rest on the Court’s interpretation of Congress’s powers under the Commerce Clause (Art I Section 8). The Commerce Clause became an expansive source of federal legislative power when it became the basis for the civil rights legisation of the 1960s. (I believe Archibald Cox thought up the Commerce Clause as the source of congressional power in those cases.) In Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), the Court held that the Commerce Clause permitted Congress to require hotels to offer accommodations to black on a nondiscriminatory basis. The power stemmed from the fact that Hotels were engaged in interstate commerce. In subsequent decisions it seemed that Congress’s power was constitutional so long as there was the slightest incident to interstate commerce.

Then the New Right members joined and began placing arbitrary limits on Congress’s power. In United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995). the Rehnquist Court held that Congress had no power to criminalize the possession of guns in a school zone, even though the sale of guns is a vast interstate business. The Court said that the criminal law’s object was too unrelated to the commerce it claimed to regulate. (Imagine: the possible use of a gun by or against children so unrelated to the interstate sale of guns that the prospect is not the business of Congress! Our modern reactionaries care not a whit for the results of their doctrines.) And since that time, the Court has attempted to restrict Congress’s power to legisltate under that and other clauses.

So the question was, Would this Court, equally as reactionary as the Rehnquist Court, perhaps more so, use the opportunity of the Health Care Law to make a stand, once again on the Commerce Clause? (Of course no one really believed that the conservatives were dispassionately interested in fending off remote commercial regulations. The right is as patently outcome-oriented as it is possible to be, while still pretending to operate under precedents.)

Well, as it turns out, 5 justices found that the law unjustified under the Commerce Clause. The new rule for this case is: Congress cannot compel persons to engage in commerce. (This rule was fashioned in connection with the so-called individual mandate, which requires covered individuals to purchase qualifying insurance plans or face a monetary penalty collected byt he Internal Revenue Service.) But how does the hotel, which doesn’t want to rent a particular room to an African American, not argue that Congress can’t compel commerce, only regulate it? Was that the point of this dictum, to unravel Great Society and New Deal Legislation?

So was Roberts placing an iron fist in a velvet glove? If so, it was as ineptly done as any such attempt. The signs that Roberts was a last minute convert are pretty convincing. Not the least of which is the fact that the ground he purportedly rested his decision (that the penalty was in fact a tax within Congress’s taxing power) was a fig so obvious that it is hard not to ridicule it. (And the right has done so. Can Congress tax people for not buying broccoli? But of course they can, if done correctly. The tax laws are filled with mechanisms to benefit certain behavior and penalize others. And what business is it of the Court if Congress did?) After extensive (and silly) discussion of the Commerce Clause, the explanation of the taxing powers is comically brief and ignores possible issues (such as whether it is a direct tax, requiring proportionate incidence).

Let’s just assume for the moment that Roberts in fact switched his vote because, hearing the voice of John Marshall pleading with him to preserve the integrity of the Court and its public standing, he had to act. Did the Chief Justice contribute to that non-jurisprudential goal? David Brooks thinks so, and that it a good indication that it is not. So what is it that he did? He produced another 5-4 decision on a Court that usually has 5-4 decisions on ideological issues. He could not entice any of the conservatives to follow his lead. His discussion of the Commerce Clause was not a trojan horse, because it was not necessary to the decision and is dicta, not precedent (as thought this Court cared one way or any other precedential niceties). He nonetheless went out of his way to discuss an issue dear to the heart of conservatives, even though it was dicta, making his discussion of the holding look foolish and the fact that the others holding his same view disagreed with him on taxing authority.

So exactly what did Roberts save? Did he show that he was willing to abandon his own jurisprudence (peculiar though it may be) in order to effect a goal (“saving the court”) despite what he believed the precedents or his judicial philosophy required? Isn’t this the essence of what conservatives call “judicial activism”? He still presides over a group of judicial Neanderthals who are both radical in their judicial philosophy and out-come determined in their results. He showed that none of these four was interested in “saving the Court.” While doing his saving work, he nonetheless found it important to discuss, though not act on, the kind of constitutional path-breaking radicalism that makes his unruly ideological mates seem like such unprincipled kooks to fair-minded Americans. And unlike John Marshall, John Roberts only produced an opinion for himself, one that will not be regarded as a seminal and wise moment in U.S. constitutional history, but rather another evidence that there is something about the current right wing that is completely out of step with American history.

But pundits already fashioned this story: Roberts saved to Court. They need not now consider whether the configuration of the Court he presides over is worth saving.

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