Conservatives should tone down criticism of Roberts

By Ken Connor

"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 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."

-Chief Justice John Roberts in NFIB vs. Sebelius

Conservatives are apoplectic that John Roberts, Chief Justice of the Supreme Court, sided with the liberal wing of the court in largely upholding the constitutionality of The Affordable Care Act (ACA). Their rhetoric has been filled with invective and they have described Roberts as "a traitor to his philosophy" who is "forever stained in the eyes of Conservatives." His opinion has been called "the worst kind of judicial activism" and characterized as "a 21st century Dred Scott decision."

You get the picture. In joining the majority in upholding Obamacare, Roberts has become the Benedict Arnold of the Bench.

To my friends on the right, I say, "Enough with the hyperbole. Take a breath. Chill out! Roberts is not guilty of the perfidy of which you accuse him and he has given us a great gift for the coming election."

And before we go further, let's make one thing clear. In ascending to the Supreme Court, John Roberts did not take an oath to advance the cause of conservatism or the agenda of the Republican Party. He did not agree to become a judicial activist for the Right. He took an oath to uphold the Constitution. The role of the Court is to interpret the Constitution, and in the Obamacare decision, he has made a good faith, well reasoned, carefully considered attempt to do just that. The fact that we may not agree with the outcome he reached does not make him a traitor or some kind of a two-horned, one-eyed judicial activist. Surely there is room for honest disagreement within conservative ranks. And is charity not one of the virtues we extol?

Conservatives should take heart from Justice Roberts' explication of Congress' power under the Commerce Clause of the Constitution. That clause has provided the pretext for an incredible expansion of the federal government into the lives of its citizens. Roberts, however, dismantled the government's argument that the ACA represented an appropriate exercise of power under the Commerce Clause and its kissing cousin, the Necessary and Proper Clause, which gives Congress the authority to do those things necessary and proper for carrying out its enumerated powers.

Rejecting the ACA's individual mandate provision as an appropriate exercise of Congress' authority to "regulate" commerce, Roberts ruled that a consumer's "inactivity" in failing to purchase health insurance could not be equated with the "activity" of purchasing it. In the absence of such commercial activity, Congress had nothing to regulate. Additionally, Roberts ruled that Congress' passage of the ACA was not a "proper" exercise of its authority under the Necessary and Proper Clause. In so ruling, Roberts affirmed the importance of the Tenth Amendment and struck a blow for the rights of the states and their people to be free from unwarranted and unconstitutional intrusion by the federal government.

The real rub for conservatives is that Roberts found that Congress had the power under the Taxing and Spending Clause to enact the individual mandate required by the ACA and to financially penalize those who do not purchase health insurance under the new program. In doing so, Roberts looked beyond the euphemistic form of the language Congress used to describe the consequences of failing to make such a purchase ("shared responsibility payment" and "penalty") to the substance of those consequences. He then called what he perceived to be a spade a "spade," denominating it a "tax." In doing so, Roberts found that portion of the ACA to be a proper exercise of the Congress' taxing authority, and therefore, constitutional.

In reaching his conclusion, Roberts acted in accordance with historical precedents which provide that when a statute is capable of two interpretations — one of which would result in the statute being unconstitutional and the other of which would result in the statute being constitutional — courts should indulge the interpretation which favors constitutionality. In other words, courts should show deference to the people's elected representatives and not be too eager to invalidate laws passed by them by declaring them unconstitutional.

Roberts also pointed out that there is a remedy for those who don't like Obamacare, namely an election. If people don't like Obamacare, if they think it is a socialistic, job-killing, tax-hiking, economy-stifling program that America can't afford, if they think it will degrade the quality of medical care in this country, they can throw the rascals out who passed it and elect a new set of rascals who will repeal it. That's what democracy is all about.

Elections have consequences, and John Roberts is absolutely right that is not the role of the Court to protect the people from the consequences of their political choices. That's what judicial activists do. They invalidate legislation based on whimsy and substitute their own fanciful ideas about what's prudent for that of our elected representatives. Judicial activism short-circuits the democratic process and puts power in the hands of a judicial oligarchy. Roberts has not engaged in judicial activism. In this case, he has left the power make change in the hands of the people. So if you don't like Obamacare, do something about it. Stop whining and get off your duff and go to work to elect those who will repeal it. And for goodness' sake, get off the back of John Roberts. He doesn't deserve our derision.

© Ken Connor