Thursday, June 28, 2012

Chief Justice Souter

While I thought it more likely than not that the Supreme Court would overturn the Individual Mandate in PPACA, I was hardly confident. Arriving at work this morning, my boss told me not to worry. Either the Court would throw out the mandate, he told me, or they would invalidate the whole bill. I told I was far less confident. I remember, all too well, Casey v Planned Parenthod.  Kennedy switching his vote at the 11th hour, welching on conservatives. Conservative justices always seem to flinch when all the chips are down. Liberal justices never do.

That said, I was still cautiously optimistic, based on the tone in the oral arguments, that the decision would come out right. I was particularly interested to see how the Chief Justice would respond to the frontal assault that the left has been making on the integrity of the court. In his position as CJ, he is (arguably) more responsible, and perhaps more concerned with, the institutional standing of the Court than the Associate Justices.  He is certainly also conscience of the low standing the Court has in public opinion polls, and the public's perception that the Court has become something of a partisan GOP insitution. Starting w/ Bush v Gore, this has been a fairly constant refrain in the MSM, and seems to have leeched into the general population's take on the SC.

Dem Senators have been hitting the Court for being "activist" (completely twisting the original meaning of the term), and the White House has been pre-emptively attacking the Court over the past few weeks in the lead-up to today's decision.  I can imagine that the CJ has been wondering what would come next. Some new court-packing scheme? A Jacksonian edict to "let Roberts enforce his opinion?" A Constitutional crisis that would unwind the authority of the Court?

I originally presumed the result of this brash attack on the integrity of the Court would be to straighten the CJ's spine, and show he couldn't be bullied. In fact, the attacks seemed to have cowed him, and achieved their intended purpose. Over at the Volokh Conspiracy, a blog written by law professors, they note that the dissenting opinion actually reads like a majority opinion. The implication is that is that Roberts had voted to overturn PPACA, only to change his mind after the decision was written. Just as with the Casey decision two decades ago, a conservative justice (at that time, Kennedy) would have abandoned an already determined conservative majority at the 11th hour, handing the liberals a win.

The only conclusion I can draw is that Roberts lacks courage.  Rather than confront the issue facing the court head-on, he ignored the thrust of the argument from both sides, reaching to the lesser issue of taxing authority (an argument that the Government mentioned only in passing during oral arguments;  and in the court of public opinion, the proponents of the law were quite forceful in declaring that the penalty under the mandate was NOT a tax) in order to throw the bill a life preserver. As noted liberal Robert Reich wrote, Robert's reasoning was "convoluted," or as I might put it, a conclusion in search of a rationale. While Reich is happy that PPACA was preserved, his conclusions about the CJ are the same as mine:
As Alexander Hamilton pointed out when the Constitution was being written, the Supreme Court is the “least dangerous branch” of government because it has neither the purse (it can’t enforce its rulings by threatening to withhold public money) nor the sword (it has no police or military to back up its decisions). It has only the trust and confidence of average citizens. If it is viewed as politically partisan, that trust is in jeopardy.
As Chief Justice, Roberts has a particular responsibility to maintain and enhance that trust. Nothing else explains John Roberts’ switch – certainly not the convoluted constitutional logic he used to arrive at his decision. On the most critical issue in the case – whether the so-called “individual mandate” requiring almost all Americans to purchase health insurance was a constitutionally-permissible extension of federal power under the Commerce Clause of the Constitution – Roberts agreed with his conservative brethren that it was not.
Roberts nonetheless upheld the law because, he reasoned, the penalty to be collected by the government for non-compliance with the law is the equivalent of a tax – and the federal government has the power to tax. By this bizarre logic, the federal government can pass all sorts of unconstitutional laws – requiring people to sell themselves into slavery, for example – as long as the penalty for failing to do so is considered to be a tax.
For his cowardice in not following his own reasoning to its natural conclusion, I am now going to lump the CJ in with David Souter.  As with Souter, Roberts was placed on the court by a GOP President, and acted as a conservative for a brief time before fully embracing liberalism. Souter had a very thin judicial record before coming the S.C., and only achieved the support of Republicans because Chief of Staff Sununu and Senator Rudman told the President, "trust us--he's conservative." Roberts had no judicial experience when coming to the S.C., his experience had been as a litigator at the Court and in the Executive Branch. Conservatives were likewise told, "trust us, he's conservative, I know him, know his wife, blah blah..."

The reality is that he didn't have the stomach to overturn a law that he knew was unconstitutional (and the fact that he did so knowingly will be proven once it comes out affirmatively that he did change his vote), and was more interested either in avoiding the appearance of partisanship (not part of his oath of office), or in preserving his status on the D.C. cocktail circuit.  I fully expect to see Roberts follow Souter's path, and use his conservative "temperment" as an excuse not to act in the face of unconstitutional statist overreach in the future.

 It just. keeps. happening.


ManBeast said...

While I agree with your major points - Roberts=Coward, the decision is an affront to liberty - I have a nit to pick. Kennedy is consistently libertarian, not conservative or liberal. It just happens to overlap with the conservative half of the court more.

Here are others backing that claim:

Fredo said...

No true libertarian could have abandoned the originalist wing of the Court at the moment of (what would have been) their greatest triumph-- PP v Casey, and the overturning of Roe.

The deprivation of life is the ultimate deprivation of liberty.

I will review your links later when I have the chance, but Kennedy is well known for being unpredictable, and has himself stated he doesn't have an overarching approach to jurisprudence (such as originalism or Living Constitution).

He's far from the worst out there, but if you want to see a true friend of liberty, it is Justice Thomas, who repeatedly dissents or concurs, even with his "conservative" colleagues, to point out how the government consistently oversteps its constitutional authority. Read his 2 paragraph dissent (which is offered as an addition to the Kennedy dissent) as another addition to his canon of strict adherence to the Constitution.

When other justices fall back on stare decisis as a reason to uphold a federal power that is not specifically enumerated in the constitution, Thomas will dissent.

ManBeast said...

You know that I consider abortion murder and that I agree with your statement "The deprivation of life is the ultimate deprivation of liberty", but my point is that calling Kennedy conservative is incorrect. As I said, nitpicking.

Fredo said...

Fair enough. I don't have any nits to pick with Justice Kennedy tonight.

All my anger is directed elsewhere. And I'm somewhere between anger and utter resignation at our nation's future.

Fredo said...

As I was thinking about your Kennedy="consistently libertarian" position last night, and putting aside Casey, it was gnawing at me that he sided with the state in Kelo. But I wasn't sure if I remembered it right.

Well, reading your two links today, I did. The bit on "Reason" was clearly the stronger defense of Kennedy (as for the "Liberty Magazine" piece, it was more a reminder to me of why Kennedy is not a reliable defender of the Constitution). Even still, Mr. Root lays out the reasons to be skeptical of Kennedy:

Kennedy also sided with the majority in two of the most notoriously non-libertarian decisions in recent years: Gonzales v. Raich, which upheld the federal government’s ban on marijuana as a valid exercise of congressional power under the Commerce Clause, and Kelo v. City of New London, which allowed New London, Connecticut's abusive use of eminent domain to stand. So while the term libertarian may apply to a nice chunk of Kennedy’s jurisprudence, it unfortunately does not apply to all of it.

Mind you, I agree with you that labels like "conservative" and "liberal" are often not helpful when evaluating a justice, and I think the same goes for "libertarian." They are shorthand. I'm not really that interested in whether a justice is conservative (whatever that means-- Burkean? Taftian? Reaganite?), but rather, in whether he faithfully applies the constitution. This is why an originalist approach to juriprudence makes the most sense to me, and is my measuring stick. When I say "conservative" in the context of the Supreme Court, I'm usually meaning "originalist."

And when viewed from the vantage point of "originalism," I think Kennedy has been largely a good justice, but at certain times a tremendously bad justice.

The unfortunate part for Kennedy, is that when he has gotten wrong, it's been in some high profile cases. Just as the ACA case will forever sully Roberts' reputation, Kennedy cannot recover from the travesty that is Casey, despite having made many sound rulings over decades. The stakes in Casey were just too high, the opportunity too great, and it was fumbled at the goal line. That will be his epitaph.

The fact that he is so roundly ridiculed for his language in the opening of the opinion is warranted. He wasn't tasked with re-writing the Declaration of Independence, simply ruling on whether the state of Pennsylvania had violated the Constitution. And as with the Warren Court, which created "eminations and penumbras of the Constitution" as rhetorical device giving them carte blanche to invent rights wholesale, Kennedy's "mystery of human life" rhetoric was a smokescreen to avoid the issue at hand. The fact that his frothy language could be used to claim it's unconstitutional to regulate narcotics, atomic weapons, and man-boy sex is just another reason why he would have been better served to avoid sweeping, metaphysical arguments, and stick to the case before him.

All that said, I'll agree with the statement that there’s “a strong libertarian streak in Kennedy’s jurisprudence”, even if he isn’t...“a down-the-line, Nozick-reading, Cato Institute libertarian.”

That's mild but not unwarranted praise, so long as you're aware of the counter-examples that Root puts in his own piece.

In my mind, Kennedy and Roberts are now the least satisfactory justices in the subset of those I'm still glad are on the Court. Still way better than the O'Connors and Souters of the world, though I wouldn't be surprised to see the CJ continue down the path to Hell.

After 24 years, at least we don't have to worry about that with Kennedy. We know what he is.


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