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    • July 3, 2012

    Roberts’ Decision

    by Mike Rappapport

    This article orignally appeared at Library of Law and Liberty

    I had been writing a post speculating on why John Roberts might have joined the progressives to uphold Obamacare in the Sebelius case when I came upon the story by Jan Crawford reporting that Roberts had changed his vote in the case.  That Roberts changed his vote, of course, does not establish why he did so.  But the story does say something about the matter:

    But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.  There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. . . . Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.  It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

    It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

    Some informed observers outside the Court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the President. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law.

    The suggestion here is the one that I also thought explained the matter.  The next two paragraphs are from my planned post:

    The most likely possibility in my mind is that Chief Justice Roberts sought to uphold the law as a tax as a means of avoiding striking down the central piece of legislation enacted by the Obama Administration and the Democrats.  The idea here is that the Supreme Court and the Chief Justice would be harmed by the negative attacks that would follow the five most conservative justices striking down this liberal legislation.

    This motivation is reinforced by the fact that Roberts is the Chief Justice and the Court is known as the Roberts Court.  If striking down Obamacare were the signature action of the Roberts Court, and this were deemed a problematic decision (especially by liberal elites), then this decision would harm the reputation of John Roberts most of all.

    If this was Roberts’s motivation for the decision, this is obviously improper for a variety of reasons.  Most importantly, constitutional decisions are not supposed to be reached out of a desire to enhance either the reputation of an individual justice or the Supreme Court as a whole.  The decision is supposed to be based on a justice’s view of the law.

    One might add that not only would this decision be based on improper motives, but would also be based on a questionable prediction.  Given the unpopularity of Obamacare, and the strong probability that the Republicans will control at least one of the branches of the government after the election, the Court did not have much to be scared of institutionally in terms of political attacks.  Instead, the most that Roberts would have to fear is criticisms from a liberal elite, but ones that would have been answered by conservatives and libertarians.

    But now Roberts may have the worst of both worlds.  If his decision comes to be viewed as a cowardly act done for improper motives, then he will hardly get much credit for it. While he may receive some praise from liberals for a time, that is unlikely to last.  By contrast, he will be strongly criticized by conservatives and libertarians, who are unlikely ever to forget it.

    There is the old saying about deciding whether someone is a knave or a fool.  The knave acts out of bad motives, whereas the fool acts from mistaken understandings.  But a knave can sometimes be a fool.  If the knave’s bad motive is a desire for honor, then his action can be that of a fool if he fails to realize that people may discover his motive.  It may yet turn out that John Roberts – known as one of the smartest people in Washington – was both a knave and a fool.

    Tagged as: Judge Robert's, Mandate Ruling

    The views expressed by the authors and editorial staff are not necessarily the views of
    Sophia Institute, Holy Spirit College, or the Thomas More College of Liberal Arts.

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    By Mike Rappaport

    Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, will be published by the Harvard University Press in 2013. Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

    More from Crisis

    • http://www.facebook.com/people/Curtis-Bratcher/1391444053 Curtis Bratcher

      I believe that Roberts was neither a neither a knave or a fool, but a shrewd Justice. Here is a quote from his decision.
       ”Members of this Court are vested with the authority to interpret the
      law; we possess neither the expertise nor the prerogative to make policy
      judgments. Those decisions are entrusted to our Nation’s elected
      leaders, who can be thrown out of office if the people disagree with
      them. It is not our job to protect the people from the consequences of
      their political choices.”
      In other words, Roberts is throwing the law back at the American public. The American public elected these fools and the fools can be voted out. If the American public doesn’t want Obama care, then vote in leaders who will remove the law. This view also falls in line with Justice Robert’s position of judicial restraint.

      • poetcomic1

            Obama desperately needed a victory and was handed one.  If you can contort it into some subtle bit of ‘judicial restraint’ I hope it pleases you but will not make the LEAST bit of difference.  The MSM (solidly in Obama’s camp) perceive it as a ‘victory’ and will ‘spin’ it into one.  All these subtleties are useless, desperate and rather pathetic as we, our republic, our freedoms are being trampled on with big stupid boots.  If Roberts, the ‘conservative’ doesn’t know this – what exactly is he ‘conserving’? 

      • respectlife

        If that’s true then he just put himself and the rest of the court out of  a job.  Why do we have a supreme court if they throw bad laws back to the voters.  This is wrong in so many ways…

      • Anonymous Seminarian

        See, this quote betrays a fundamental confusion of how our constitutional republic (not “democracy”!) is structured–we have representatives, senators (originally not elected by popular vote), and the supreme court precisely because the people as a whole need to be protected from the ever-fickle will of the ‘majority’. Democracy is two wolves and a sheep voting on what’s for dinner. That’s why we aren’t (supposed to be) a democracy.

    • Michael Paterson-Seymour

      Reminds me of Charles Péguy’s remark  « Le monde est plein d’honnêtes gens.  On les reconnaît à ce qu’ils font les mauvais coups avec plus de maladresse.»  – The world is full of honest folk; they do bad things more awkwardly 

    • Pingback: Robert’s Decision | Catholic Canada

    • Nick

      Actually, Justice Roberts said something quite revealing if you watch this episode of the Vortex, namely that it’s our fault more than anything.
      http://youtu.be/zz3jJg1CB7c

      • Aaron

        Thank you for the link.  Dr Rappaport does quote precisely the passage this video addresses.  The speaker in the video is quite right to point to a failure on the part of the Church to sufficiently confront this sort of evil sooner.  Where I think that Roberts’ “you elected them, its not the SCotUS’s job to save you from the consequences” argument is most troubling to me, however, is that it ignores what is meant to be the whole purpose of the Constitution and the Supreme Court as its ultimate advocate:  our rulers are meant to be constantly limited by the rule of law and our intentionally Spartan constitution which originally placed tremendous limitations on the federal government.  If Obama were the Emperor (he hasn’t accepted the “kingly crown” on the Lupercal yet, has he?) then we would have only the essentially Hobbesian choice:  put up or go to war.  The rule of law, however, which the SCotUS is supposed to defend, should not leave the President with the power to do any of this sort of nonsense.  Absolutely, lets vote Obama out of office, but even if we get “our guy” in (whoever that might be), it will be useless if the office itself has become that of Emperor and the rule of law is lost.  Good or bad officials, good or bad society, good or bad times, our Republic was better than Roberts’ brave new world.   

    • Adam_Baum

      Let’s charitably assume that Roberts voted as he did in order to preserve the Court’s honor.

      He swore the following Oath:

      According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:

      “I, [NAME], do solemnly swear (or affirm) that I will administer
      justice without respect to persons, and do equal right to the poor and
      to the rich, and that I will faithfully and impartially discharge and
      perform all the duties incumbent upon me as [TITLE] under the
      Constitution and laws of the United States. So help me God.”

       
      In the case, his decision wasn’t merely “improper” (I’m assuming improper is being used in the conventional sense here, and not meeting the definition of a charge of judicial misconduct)  it was dereliction of duty.

      If Roberts is so obsessed with the status of the Court, he should have considered this: As a Catholic Chief Justice, he should be aware that his jurisprudence would be compared to Roger Taney – who provided us with this abomination:

      “It is difficult at this day to realize the state of public opinion in
      regard to that unfortunate race which prevailed in the civilized and
      enlightened portions of the world at the time of the Declaration of
      Independence, and when the Constitution of the United States was framed
      and adopted; but the public history of every European nation displays it
      in a manner too plain to be mistaken. They had for more than a century
      before been regarded as beings of an inferior order, and altogether
      unfit to associate with the white race, either in social or political
      relations, and so far unfit that they had no rights which the white man
      was bound to respect.”

      That of course is from Dred Scott.

      Let us congratulate Roberts for establishing precedent to allow unlimited federal control over citizens, thereby rendering us subjects , rewriting an inherently defective law instead of vacating it, bring disdain on his institution, profession and Church. Nice work.

    • Chris

      Congress and the president have “term limits” which we call the “ballot box”!  Chief Justice Robert’s decision, according to Professor Dunn preserved the moral authority and integrity of the Supreme Court. His decision has prevented President Obama from using the Supreme Court decision  as a political football during his re-election campaign. Lets keep our cool, be patient and watch how things unfold. 

    • J17ghs

      The U.S. Supreme Court may have upheld aspects of so-called Obamacare,
      but that doesn’t make the law socially acceptable, morally proper or
      democratically just.
      Consider that former Supreme Court Justice Oliver Wendell Holmes wrote
      the majority opinion for the high court in upholding forced
      sterilization acts around the country in 1927. That particular decision
      concerned a forced sterilization case involving a young woman in Virginia.

      Within less than two decades, more than 30 states had such laws.
      Further, California led the country in forced sterilization in 1927,
      performing 2,500 of the 3,500 such procedures that year. The California
      Sterilization Act of 1909 was even used by the Third Reich as a model
      for the Nazi Party’s first such law in the mid 1930s. Regardless of our political affiliations or preferences, we must keep a
      wary eye on the application of laws such as Obamacare given past abuses
      and misplaced intentions, and mainstream media must play a much more
      active and educational role in this regard than it has to-date.

    • Stan Gwizdak

      The ACA is the greatest vehicle in the history of this country, thus far, for the extinguishing of liberty. It makes almost quaint the arguments of Madison, Hamilton, et al that tried to assauge the terrors of the anti-federalists who feared a tyrannical federal government once the Constitutions was ratified. The Bill of Rights was adopted precisely to assuage these fears and to limit, contain and restrict what the federal government could do. The founders well understood the natural inclination of any government to accrue and maintain power to itself at the expense of those whom it ruled or governed.

      Incrementally, those restrictions, with a wink and a nod, have been swept away. States are nothing more than Branch Offices of Washington, funneling federal bribery and coercion to its citizens. State sovereignty has been reduced to the fashioning of really cute license plates. It is a travesty.

      The Chief Justice, whatever his reasoning or whatever his pressures, had a duty to protect, defend and preserve the Constitution – especially its integrity from an overreaching, overbearing, insatiable quantum leap in federal aggrandizement. Everything is this man’s past jurisprudence indicated that he would do just that. Ultimately, despite clever nuancing and outright re-writing of the case, he failed to do that. Period. We have entered into a new epoch in American history. The fundamental relationship between the government and its citizens has been altered.

      As untenable as the Articles of Confederation were, no founder would have signed on to federal dictatorship.

      To repeal we will need to do the following: 1) hold the House, 2) win the senate, 3) win the White House and 4) actually trust the Republicans to actually repeal it.

      Me thinks not. We are stuck with Chief Justice John Robert’s enduring legacy.