Chief Justice John Roberts
I was going to provide an analysis of both of the Supreme Court decisions today related to gay marriage, but instead I will focus on Hollingsworth v. Perry, which was concerned with California’s Prop 8. But first a couple of thoughts about US v. Windsor, the DOMA case. The immediate short-term impact of the case is somewhat limited in scope. Federal benefits will be conferred upon same-sex couples who live in states that recognize their partnership as marriage. The long-term impact, however, is much starker, as will be explained in a moment.
Both Justices Alito and Scalia provide blistering dissents, and they should be read in full. They disagree on a technical though not insignificant point about the standing of the Bipartisan Legal Advisory Group, or BLAG (and for the record, I tend to side with Alito). First of all, Scalia properly notes that, despite the rhetoric in Kennedy’s opinion, this was not a federalism case, or at least the case was not decided on federalism grounds. In fact, contrary to exhortations of some so-called libertarians on twitter, this case has the ultimate effect of further eroding states’ rights regarding same-sex marriage. Had this case been decided on federalism (10th amendment) grounds, then the outcome would have been possibly justifiable. But the majority’s reliance on 5th and 14th amendment concerns – effectively relying on the absurd legal doctrine of substantive due process – runs completely counter to the federalism argument, and paves the way for future challenges to state laws that prohibit same-sex marriage.
Justice Scalia recognizes this farce for what it is, and reminds the public of the exchange between these two very same Justices ten years ago to the date in Lawrence v. Texas. Then Justice Kennedy assured us all that striking down anti-sodomy laws would not eventually be used as a rationale for upending traditional marriage, and Scalia scoffed at him in the dissent. Well, guess who’s looking prophetic now. Even left-wing pundit David Corn (gleefully, this case) acknowledges Scalia’s prescience. Kennedy, backed up by the obtuse Chief Justice, assures us that nothing in this decision interferes with state decision-making on marriage. Once again Scalia scoffs, and, sadly, at some point in the future he will no doubt be proven right.
As for the Prop 8 case: my what a tangled web. I have been defending Chief Justice Roberts’s decision (joined, I may remind you, by Antonin Scalia along with three of the Court’s leftists) on the grounds that had the case been decided on the merits, it is quite possible that the same 5-4 majority in Windsor would have held Prop 8 to be unconstitutional, and this would have been the Roe v. Wade of gay marriage. Now, I’m not so sure.
Admittedly, I am somewhat conflicted on the ruling on standing. The majority concludes that the petitioners did not have standing because they were not official delegates of the state, and they did not experience any harm due to the appellate court’s ruling decreeing Prop 8 to be unconstitutional. From a certain point of view, this is a perfectly acceptable legal holding. Scalia made a very good case in his Windsor dissent for a blanket denial of standing to all non-state petitioners in such cases. Scalia is acting fairly consistently, thus that explains why he voted with the majority here.
That said, the Chief Justice’s opinion is very worrisome, and not just from the standpoint of traditional marriage. As Justice Kennedy (!) explained in his dissent (joined in totality by Thomas, Alito, and Sotomayor), the petitioners here do, in effect, represent the state. In fact the state constitution all but says that when it comes to ballot initiatives, ordinary citizens are agents of the state. I would go a step further and suggest that Roberts offers up a very constrained view of who the state is. According to his logic, the “state” is nothing more than the Chief Executive and the bureaucracy. From a technical legal standpoint this is fine, but the very point of a ballot initiative is to bypass state officials whom the citizenry at large have decided are not acting in their best interests. I have written before about my concerns (to put it mildly) regarding ballot initiatives, but it is illogical to deny that the ballot initiative process changes the normal dynamics of who has legal standing.
The Chief suggests on page 8 of his opinion that once the proposition was approved and enacted, that petitioners no longer had a role in enactment. But if the executive branch of the government refuses to defend the amendment or statute, that leaves the citizens with no legal recourse.
The petitioners relied on the case of Karcher v. May to argue that they indeed had standing, but Chief Roberts denied that the the ruling there was applicable.
Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it. The legislators in that case intervened in their official capacities as Speaker and President of the legislature. No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional. Maine v. Taylor, 477 U. S. 131, 137 (1986). To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court.
But in a case revolving around a ballot initiative, haven’t the voters themselves become, in essence, the equivalent of legislators?
Roberts’s reticence to grant standing in this case is understandable, and I can see why Scalia would join the majority. In his Windsor defense, Scalia admirably rails against the idea of an omnipotent judiciary that decrees on all constitutional issues just because it wants to. An overly broad interpretation of who has standing empowers the judiciary. But I think this is a rare case in which judicial deference actually damages the workings of the republican process. For good or ill, Californians have favored a much more directly democratic system, and the Court’s majority fails to factor that into its decision-making. By denying standing to the petitioners, the Court has said that citizens have no real redress should state executives defy their expressed wishes.
Which leads me back to my uncertainty over the rationale over the votes cast in these two cases. I’m in the odd position where I disagree with the person who I think has the cleaner motive, but agree with the person whose motives are perhaps suspect. I have no doubt that if this case had been decided on the merits, Chief Justice Roberts would have voted to uphold Prop 8, while I’m not so certain about Kennedy. Scalia acted consistently with his overall principles, as did Alito (who would have granted standing to BLAG). Thomas offered no opinion in either case, but I suspect his reasoning would be similar to that of Alito, and so he acted consistently on the standing question as did, quite frankly, Sonia Sotomayor. As for the Court’s three other left-wingers – well, they did what they always did and just voted for the right (in their minds) outcome, reasoning be damned.
No matter the rationale for Roberts’s decision, it has ill portents. If Roberts acted strategically, then he abdicated his responsibility to be an impartial arbiter of the law. If he acted earnestly, well, he was simply wrong. More importantly, we’re stuck in a situation where the actual wishes of a democratic majority are trivial concerns compared to the desires of a handful of unelected judges. No matter how they voted today, this is simply untenable, and there is no end to this judicial tyranny in sight.
This is, in a sense, a two-part post. The first part examines the decision handed down by the Court in Shelby v. Holder, and the second looks at the hysterical over-reaction.
The decision itself is fairly restrained. In a 5-4 decision, with Chief Justice Roberts delivering the opinion of the Court, the Court ruled as unconstitutional Section 4 of the Voting Rights Act of 1965. Actually, it really just ruled that Congress’s application of a 48-year old formula for determining which states and counties had to seek clearance from the federal government for any changes in its voting laws was lo longer justified. States subject to pre-clearance were those states which had poll tests and other restrictive measures in place at the time of the law’s enactment, and which also had enormous gaps in white versus black voter participation. This formula has remained unchanged for nearly half a century.
As the Chief explained in the ruling, the Court permitted a very wide abrogation of state authority in its decision upholding the Voting Rights Act (Katzenbach v. Morgan). The Court permitted what it termed “an uncommon exercise of Congressional power” due to “exceptional conditions.” As the Chief further explained, those exceptional conditions no longer applied, and indeed in those states and counties subject to pre-clearance there has been increased racial parity in terms of registration and participation. In fact, if one were to construct a list of states that should be subject to pre-clearance based on disparities in voter participation, there would be more justification in including Massachusetts instead of, say, South Carolina.
Justice Ginsburg in her dissent quips, “In the Court’s view, the very success of Section 5 of the Voting Rights Act demands its dormancy.” By the standards established by the dissenters, the formula established in Section 4 could never be deemed unconstitutional. Further, as Chief Justice Roberts says in his opinion:
The dissent treats the Act as if it were just like any other piece of legislation, but this Court has made clear from the beginning that the Voting Rights Act is far from ordinary. At the risk of repetition, Katzenbach indicated that the Act was “uncommon” and “not otherwise appropriate,” but was justified by “exceptional” and “unique” conditions. 383 U. S., at 334, 335. Multiple decisions since have reaffirmed the Act’s “extraordinary” nature. See, e.g., Northwest Austin, supra, at 211. Yet the dissent goes so far as to suggest instead that the preclearance requirement and disparate treatment of the States should be upheld into the future “unless there [is] no or almost no evidence of unconstitutional action by States.”
Ultimately, the decision is of somewhat limited scope:
Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.
Of course this hasn’t stopped the left from completely over-reacting. A post on the Corner compiled the most over-the-top reactions. Melissa Harris-Perry’s tweet of “Damn, that citizenship thing was so great for awhile,” certainly was cute, but no one is touching Minnesota state rep. Ryan Winkler, who tweeted, “SCOTUS VRA majority is four accomplices to race discrimination and one Uncle Thomas. Marriage decision may blur Court’s backsliding.” Winkler soon deleted that tweet, and followed up with this whopper:
@atrupar I did not understand “Uncle Tom” as a racist term, and there seems to be some debate about it. I do apologize for it, however.
— Ryan Winkler (@RepRyanWinkler) June 25, 2013
It’s difficult to determine the most disgusting part of this exchange. Either Winkler is historically illiterate or a liar, though of course nothing necessarily precludes both being true. What’s worse, this white legislator from one of the whitest states in the Union seems to think he knows better than a black man raised in the South about how to deal with racial prejudice. Moreover, whitey has declared himself the judge of authentic blackness. Charming.
Finally, and I realize this is something of a nitpick, but the very term “Uncle Tom” is offensive not just because it carries with it the implicit notion that all African-Americans must think and act a certain way, but because the term itself is based on a character in a historical novel who was the opposite of what the term is meant to imply. I have a feeling that no one who has ever used the phrase has actually read the novel Uncle Tom’s Cabin, because if they had they would have a hard time justifying referring to the character as a race traitor. Then again, we live in a world where Al Sharpton is given legitimacy as a political analyst on a cable news network, so perhaps I underestimate the stupidity of large swathes of the American public.
For those conservatives tenaciously clinging to the idea that Chief Justice John Roberts is playing some masterful game of chess that will end only with the liberals on the Court, in Congress, and in the White House brought to their knees in humiliating defeat, well, I’m not even sure the Chief is up for a rousing game of checkers. According to Jan Crawford’s piece, Roberts’ change of heart was motivated in large part to concerns over media pressure. So, the Chief Justice of the United States, according to this report, was cowed into upholding Obamacare because he was afraid of how the Court – and especially he – would look.
It has been rightly pointed out that Crawford relied on two anonymous sources, and therefore this story should be taken with some fine grains of salt. It’s certainly a plausible story, but an unconfirmable one.
Fine. It is possible that the Chief Justice wasn’t cowed by media or executive pressure. But even if the Chief Justice was not particularly pressured to decide in favor of Obamacare, it’s not beyond reason to suggest that he was still concerned about the institutional prestige of the Court, as well as a respect for the other two branches of government. Thus he concocted a rather far-fetched legal argument in order to justify declaring as constitutional a statute he knew at heart was not constitutional. So the more charitable interpretation of Roberts’ behavior is not that he’s a coward, but rather an activist who decided to rewrite a statute from the bench in order to avoid embroiling the Court in a partisan political battle.
There is a third option: John Roberts legitimately believed in the argument he made about the statute’s constitutionality.
Which is the option in which the Chief Justice looks like a chess playing genius again?
The title of the post, by the way, comes from my wife’s suggestion that President Bush nominated a Ravenclaw when he should have nominated a Gryffindor. It’s certainly more logical than anything I heard the Chief Justice say last week.
Update: It occurs to me that there is a fourth avenue of “defense,” and that is Roberts made a brilliant political calculation by forcing Obama to defend the health care law as a tax. Put aside the question of whether or not that would be an astute political maneuver. If that were indeed Roberts’ intention, than that hardly speaks well as to his character as Chief Justice. If he decided to uphold the law only to enable its use as a partisan club against the president, then the Chief Justice would have engaged in behavior that would justify his removal from the bench. So his defenders might want to think twice about that line of attack, at least insofar as they posit that he willfully engaged in such politicking.
By the way, if you’re still unsure of what to think of John Roberts’ thought process, look who was helping him along and now has his back.
Kmiec, a rare conservative supporter of Obama in 2008 who served as his ambassador to Malta, said he thinks Roberts sought out Justice Anthony Kennedy’s vote but didn’t spend much time trying to sway Justices Antonin Scalia, Clarence Thomas and Alito. Roberts, he said, probably didn’t worry about being punished by the conservatives.
“Roberts is a bigger man than that,” Kmiec said. “He might smile and recognize that was what they were doing, but he’d also just appreciate that was their way of making a statement. But he’d not chase the tail of the dog to try to turn it around.”
Kmiec, who served a resource to Roberts as he lined up his current two-week teaching trip to Malta, said he thinks Roberts would prefer that the story of the court’s internal deliberations get out “rather than keeping it so secret that it’d have caused some hard feelings among the chambers.”
“I think he knows in his heart that he’s reached a good decision for the well-being of the court and I don’t think he’s earned any long-term enmity of the conservatives,” Kmiec said. “If anything, this will give him more bargaining ability for years to come on both sides.”
Well if he’s got Doug Kmiec on his side, what more can a man ask for than that?
If you had told me before the day started that John Roberts and Anthony Kennedy would have penned differing opinions on the Obamacare case, and that I’d be siding with the latter’s opinion, I would have said that you were nuts. Alas, it appears that John Roberts is the new Anthony Kennedy.
Ed Whelan has speculated that Chief Justice Roberts changed his vote at the last minute, and therefore the dissenting opinion was originally the majority opinion. He has a follow-up post that posits another theory supporting that notion, which also explains how that could be logistically possible. Having now fully digested the dissenting opinion, I am just about 99 percent certain that John Roberts did indeed change his vote, and that the dissenting opinion was the majority opinion until the Chief Justice changed his mind.
Frankly, the dissent just doesn’t read like a dissent at all. As Whelan points out, the dissenting opinion repeatedly alludes to Justice Ginsburg’s opinion as the dissent. In fact, the dissenters barely alludes to the Chief Justice’s opinion at all until the very end. The final couple of pages are a scathing attack on the majority’s opinion, heretofore unmentioned. It certainly seems like the dissenting Justices felt jilted by the Chief Justice, thus the unusually harsh rhetoric of the final few paragraphs of the dissent. Another sign that the dissenters were in the majority comes on the second page: →']);" class="more-link">Continue reading
Conservatives looking for some kind of victory in today’s decision in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. (the Obamacare case) are pointing to two aspects of Chief Justice John Roberts’s rulings. First, a majority of the Court ruled that the individual mandate was unconstitutional under the commerce clause. Second, the Court ruled that the Federal Government could not force the states to expand Medicaid coverage under the Affordable Care Act. Therefore, the Court narrowed the scope of Congressional power in two different arenas.
Indeed, 44 pages of Chief Justice Roberts’ opinion are absolutely constitutionally sound. During the course of the opinion the Chief Justice made the same argument that many individual mandate opponents have been making for months: you cannot create an economic activity in order to regulate it under the commerce clause. “The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous.” The Chief Justice latter adds that the individual mandate “does not regulate an existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.” Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” Furthermore, “[a]llowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and – under the Government’s theory – empower Congress to make those decisions for him.”
Roberts further tears into the logic of those defending the mandate on commerce clause grounds by pointing out that other activity – such as people not eating a healthy diet – does far more to raise health care costs than does failure to have health insurance. Therefore, under the government’s logic, “Congress could address the diet problem by ordering everyone to buy vegetables.” Therefore, the government’s arguments with regards to the commerce clause are ultimately unsupportable.
The problem with those taking the rosy view; however, is that the Chief Justice’s opinion is 59 pages. The Chief takes a detour roughly halfway through the opinion that is so unfathomable, it almost reads as if an entirely different person wrote the opinion.
Chief Justice Roberts holds that despite the statutory language, the penalty for failure to buy health insurance can more accurately described as a tax. This, despite what the language of the bill actually says, and what President Obama himself even said. And that’s also in contradiction of what had just been argued when discussing the anti-Injunction act. As Carrie Severino puts it:
The main holding of the case is that the mandate is upheld as a proper exercise of the taxing power. This is a decidedly awkward result, as the first section of the result explains that the mandate is not a tax for the purposes of the Anti-Injunction Act. During the oral argument the courtroom erupted in laughter when the solicitor general was asked how he could argue that the mandate was not a tax on Monday but was on Tuesday. In the end, the court chose that implausible — even laughable — result in a fairly explicit attempt to hold the mandate constitutional.
Jeff Goldstein also mocks this bit of legal jujitsu. Intentionalism is a concept that he blogs about frequently, and he rightfully calls out the Chief Justice for his violation of the concept.
According to the CJ, a penalty is indeed a tax when it can be viewed as a tax for purposes of a ruling. Meaning, a penalty is a tax when a Justice decides to rewrite the law to turn a penalty into a tax. Which he justifies because the way the penalty looks to him suggests that “reasonable” people (or philosopher kings) can, if they squint — and if they ignore the intent that turned the law into law in the first place, and turned a set of marks into a set of signs, into language — see a tax. How that is “reasonable” is anyone’s guess: we know in no uncertain terms that Obama and the Dems who passed the law didn’t devise the mandate as a tax (despite what they later argued); for one to conclude that it is reasonably possible to “read” a penalty as a tax, therefore, what c0mes to count as “reasonable” must be redefined as “ignoring what we know to be true”. And that seems antithetical to “reason.”
Roberts has chosen to see a tax where a penalty was intended — thereby rewriting the law and turning it into a new text, one which he intends, though he incoherently and disingenuously suggests that he is finding meaning in the text that can “reasonably” be ascribed to it.
Roberts justifies this change in terminology by noting that the amount of the penalty that would be levied would not be punitive – in fact the cost of paying the penalty would often be less than the cost of buying health insurance. And since the so-called penalty would not be burdensome, it’s not really penalizing behavior.
But the most egregious aspect of this decision, and one which an astounding number of commentators seem to be missing, is that the Chief Justice has massively expanded the use of the taxing power. Roberts asserts that “taxes that seek to influence conduct are nothing new.” He then rattles off a list of things that are taxed heavily in order to change behavior, including cigarettes. The problem with this is that people have to buy cigarettes in order to be taxed. This “tax” is applied to people who don’t make a purchase. In other words, the federal government is taxing non-activity. It is the same exact logic that the government used to justify the mandate under the commerce clause. All Roberts has done is shift the authority under the Constitution which justifies government intervention.
Then Roberts makes the astounding claim, also amazingly echoed approvingly in certain quarters, that “While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.” (emphasis mine)
I’m actually embarrassed for the Chief Justice here. Surely he is not as incapable of making a logical progression as this statement suggests he is. But let’s make this crystal clear. If you do not purchase health insurance, you will be penalized, err, “taxed.” If you fail to pay that tax at the end of the year, what do you suppose happens to you? Does the IRS send you a series of letters pleading with you to “please, pretty please, with a cherry on top, please pay your tax?” Do they put little frowny faces at the bottom of these letters? Does the Commissioner of the IRS stand outside your window with a boom box blaring “In Your Eyes” by Peter Gabriel, the rain pelting him as he cries out “Please, just pay this tax which, by the way, should in no way be construed as a penalty?”
Oh, that’s right, you go to jail. So you totally have the right to not buy health insurance, and there’s absolutely no punishment for failure to pay the tax. This assumes, of course, you always wanted to share a very small space with a drug dealer named Zeke. Just think of this as a government-funded vacation where you may, or may not, have discomfort walking towards the end of the vacation. You see – what a bargain!
The Chief Justice makes several more spurious claims. He notes that “tax incentives already promote, for example, purchasing homes and professional education.” But tax incentives are reductions in the level of taxation for making certain purchases. Your taxes are not increased when you decide to rent a house instead of purchase one.
Roberts observes that the “Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated in the Constitution.” Really? The income tax was made allowable only through the 16th Amendment, but it’s not a tax merely for existing. It’s a tax that only applies if you earn money – in other words, it’s a tax that applies only when you engage in the activity of earning your daily bread. It’s not a “mere existence” tax, and it’s certainly not a taxation of non-activity.
According to Article I of the Constitution, Congress has the ability to issue direct taxes apportioned among the several States, but the Chief Justice himself declares that this is not a direct tax.
Section 8 of Article I states:
Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Again, I fail to see how that justifies taxation of non-activity. The idea that this kind of tax would have been countenanced by the same people (by and large) who fought the War of Independence is laughable on its face.
Attempts to sugarcoat this opinion are wrongheaded. In many ways, Roberts’ basing his decision on the tax power is worse than if he had relied on the Commerce Clause, for he has actually expanded the reach of the federal government in a way heretofore unseen. It’s true that Roberts and the four dissenters limit the reach of the commerce clause, but in reality they haven’t done much more than what the Rehnquist Court did in the mid-90s in the Lopez and Morrison cases in limiting the scope of the Commerce Clause. No new ground has been broken, and no old precedents were over-ridden. Much the same can be said with respect to the Medicaid ruling. On the other hand, the Chief Justice has broadened the taxing power so that it can now be applied to non-activity. Long story short, the federal government has more power today than it did yesterday. That is the most chilling aspect of this decision.
I believe that the commenter cthemfly25 has it right in the comments on my previous post:
Congress can always use taxing authority to undermine the constitution. And if a tax can be used to undermine the constitution and modulate and control social behavior, then the all powerful central government can use its unmitigated taxing power to regulate religion (there is no way applying Roberts’ logic that the religious mandate could be struck down), regulate home schooling or private schooling (“taxed” for not teaching homosexual curriculum), regulate the size of families (taxed for having more than two kids), regulate food or beverage consumption (taxed based on calorie intake), regulate fuel consumption (“taxed” for excessive fuel consumption), regulate choice of consumer goods such as vehicles (“taxed” for not purchasing a “green” car),—–regulate from a central authority any human or civic activity under the rubric of “taxation”.
Perhaps the Anti-Federalist Brutus was right, after all, about the taxing power under the Constitution.
This power, exercised without limitation, will introduce itself into every comer of the city, and country — It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!