A "Bush v. Gore" What If....

Courtesy of Sandra Day O'Connor, Scott Lemiuex shares his memories of a horrible series of Supreme Court decisions.

And, again, it’s not just that justices notably unsympathetic to broad equal protection claims claimed to accept an innovative equal protection argument. Where Bush v. Gore immediately falls apart and becomes a historic disgrace is that the completely lawless remedy left an election count with all of the alleged equal protection defects of the court-ordered recount (and the “mess up” job of the Florida authorities) in place.

Here's a thought experiment: What if, rather than tampering in a poorly conducted state election the Supreme Court had let the result stand. Even in the worst of circumstances the Constitution provides a remedy, specifically that the House of Representatives would elect the President.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

Had the election come down to that, we might as a nation have taken a hard look at how elections are conducted, inconsistent approaches to taking and tallying votes, and similar flaws and set about fixing them. Instead the Supreme Court allowed the nation to bypass that type of difficult work, and subsequent concerns about election technology, fairness and potential for actual fraud have largely been either ignored or have gained attention based not on the genuine flaws reveled by Florida, but based upon demagoguery about largely imaginary allegations of voter fraud. Rather than having remedies directed at improving elections, legislatures have largely focused on making it difficult for certain classes of voter to reach the polls and vote.

Maybe it wouldn't have made a difference. But....

You Won't End Racism With Shallow Bromides

How would you describe the following statements:

• The way to stop deficit spending is to stop deficit spending.

• The way to stop the civil war in Syria is to stop the civil war in Syria.

• The way to stop overfishing in the ocean is to stop overfishing in the ocean.

• The way to stop climate change is to stop climate change.

• The way to stop our nation's dependency on foreign oil is to stop our nation's dependency on foreign oil.

Are any of those observations helpful? Useful? Insightful? Or are they banal? Circular? worthless? Mindless repetition unworthy of the label, "tautology"? How about this one:

• The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.

I was reminded of that statement, made by Justice Roberts in opposition to the continuation of affirmative action, when Will Cain recited the line on Real Time as if it were a magic bullet solution to our nation's history of racial strife. (They way to stop talking heads from saying foolish things on television is to....)

Jim Lindgren provided a brief, albeit incorrect history of that assertion here, in a statement that I believe crystallizes the thinking of people like Roberts and Cain,

As general background on the history of the nondiscrimination ideal, the best place to start is Andrew Kull's prize-winning The Color-Blind Constitution (Harvard Press). Kull details the rejection of the color-blind version of the 14th Amendment in favor of what was viewed at the time as the weaker and less radical version that was adopted. And he details the rejection of color-blindness, just a few years after a consensus was finally reached in 1964 that American law was to be color-blind. His last main chapter describes the shift away from color-blindness toward what Justice Brennan called "benign racial sorting." In the course of that chapter he describes the idea that the special contribution of American law to reducing discrimination might be to embrace nondiscrimination.

There was nothing in the "less color-blind" version of the 14th Amendment that became the law of our land that compelled our nation to adopt legalized segregation, a doctrine of "separate but equal" that was anything but equal, anti-miscegenation laws, Jim Crow laws and the exclusion of minorities from certain jobs and educational opportunities based upon the color of their skin. There is nothing "color blind" in a body of law that explicitly divides the population based upon skin color and excludes one set of people from superior services available to the other. There is nothing "color blind" in declaring that formalized inequality to be permissible equality. You would have to be blind to history to not recognize "separate but equal" as a sham.

Lindgren is correct that the notion of the "color blind constitution" was rejected as we entered the civil rights era. What he fails to accurately describe is that the notion that the constitution should be "color blind" came in the wake of the civil rights movement, and that the argument was championed by people who had opposed the end of segregation. Why would advocates of segregation and Jim Crow call for a "color blind" constitution? Because they wanted to tie the government's hands in its implementation of remedies. It is that history that lives on in the remarks of Justice Roberts - not explicitly, but in the form of an echo. Roberts can reflexively issue a platitude, and the heirs to the Southern Strategy reflexively cheer, never mind the history.

Lindgren notes,

The idea that the best way to end discrimination is to stop discriminating was a common idea by at least the Reagan Administration.

And quotes Bill Bennett, then Secretary of Education,

What steps do you think should be taken to eradicate racial prejudice and discrimination? What steps should be taken, I guess, are the ones I laid out in my letter to the Equal Employment Opportunities Commission. That is, we should stop discriminating on the basis of race, sex, religion, and origin. Stop, stop, stop. That's where everybody wants to go. The best way to get there is to get there--that is, to stop. You do not eradicate an unfortunate legacy by perpetrating another unfortunate legacy.

You known, "Shucks, what an awful history, but it would be terrible to impose remedial measures." Case closed, we now return you to your original programming, "Welfare queens and young bucks who buy T-bone steaks with food stamps."

Admittedly, affirmative action has always worked better in theory than in practice. The name is born of the theory - the concept of the government taking affirmative action to end racism. But what action can the government take to even the playing field. To overcome generational disadvantage. The conceit of Justice Roberts is that the nation can be viewed as a single actor - and thus, that if the government becomes truly color blind, everybody will be truly color blind. Discrimination will end and we'll all wear Benneton and sing songs about Coca Cola.

But the world is not that simple, and the government was trying to act to prevent and correct a history of private discrimination through public measures. That's inevitably going to be unfair to some people, and is inevitably going to provide a benefit to some who don't need it while denying the same benefit to others who do. There are plenty of valid criticisms that can be made of affirmative action programs, both in terms of the big picture and in terms of the details. The issue being, and the Supreme Court historically recognizing, that sometimes a deeply flawed corrective measure is better than doing nothing. And certainly that you don't eliminate racism by pretending it no longer exists.

I've commented on this before, but one of the recurring themes over at the Volokh Conspiracy, the group blog where Lindgren posts, is that affirmative action is harful to minorities. That they would be more likely to excel at school, t graduate, to earn high incomes if they went to lesser schools better matched to their assumed academic talents. But they never present that same argument about legacy admissions, nor do they apply the same reasoning to kids who are at the margins of admissions standards and get bumped down to their second choice school based as a result of affirmative action. Why would a Harvard legacy be harmed if his school said, "You don't meet our academic standards?" Why would an applicant to any school be harmed if they received the "benefit" of being denied admission to a more difficult school for which they were barely qualfied, and instead ended up in a less academically rigorous setting where they would be closer to average? The reasoning should be the same, but obviously the politics are different.

Ending affirmative action won't end racial discrimination any more than its creation started discrimination. The way to stop discriminating on the basis of race is to come up with effective mechanisms that will stop people from discriminating on the basis of race, and then to implement those solutions. If you believe racism no longer exists, then great - the last step is to eliminate race-based corrective measures. But if you know better and care about ending racism, while it's fine to say "Affirmative action is deeply flawed and we can do better," you need to at least try to define the programs you would implement in its stead or attempt to explain why you see the cure as being as bad as or worse than the disease. If you don't care, however, Roberts' quote makes for a great sound bite, doesn't it.

Cafeteria Catholics and the Free Exercise of Religion

A few days ago, in a column entitled "Defining Religious Liberty Down", Ross Douthat attempted to reinterpret the Free Exercise Clause of the Constitution in a manner that, in essence, would allow anybody who shares his religious beliefs, as well as a few others whose beliefs don't offend him, to do and say whatever they believe their religion demands, with no response or push-back from even a single individual. Anybody who does not accept that, Douthat lectures, "then don’t tell religious people that you respect our freedoms."

Douthat gets off to a weak start by attempting to reinvent the Free Exercise Clause,

[T]he Bill of Rights guarantees Americans something that its authors called “the free exercise” of religion.

It’s a significant choice of words, because it suggests a recognition that religious faith cannot be reduced to a purely private or individual affair. Most religious communities conceive of themselves as peoples or families, and the requirements of most faiths extend well beyond attendance at a sabbath service — encompassing charity and activism, education and missionary efforts, and other “exercises” that any guarantee of religious freedom must protect.

That is to say, Douthat finds the words "significant because as he understands them, if he claims to have been inspired by religion, they shield his every word and action from criticism. Not just from discrimination, not just from state actors, but from the responses of private citizens who happen to hold different values.

As I previously stated, Douthat is not speaking in defense of broad religious liberty. He is speaking out for his own beliefs, and other beliefs that he finds acceptable. He does not even consider that you might oppose his words or actions on religious grounds. If you so much as whisper a protest, you're violating his religious liberty - with his faith, or perhaps its his narcissism, obscuring that he's displaying the very arrogance he ascribes to anybody who disagrees with him.

Beyond the sheer arrogance of his position, Douthat overstates his constitutional case. In upholding the state's right to prohibit sacramental use of peyote, Justice Scalia, also a Catholic, has attempted to explain the Free Exercise Clause,

The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into the Fourteenth Amendment... provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U. S. Const., Amdt. 1 (emphasis added). The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such."... The government may not compel affirmation of religious belief, ... punish the expression of religious doctrines it believes to be false, ... impose special disabilities on the basis of religious views or religious status, ... or lend its power to one or the other side in controversies over religious authority or dogma....

But the "exercise of religion" often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a State would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of "statues that are to be used for worship purposes," or to prohibit bowing down before a golden calf.

Respondents in the present case, however, seek to carry the meaning of "prohibiting the free exercise [of religion]" one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as "prohibiting the free exercise [of religion]" by those citizens who believe support of organized government to be sinful, than it is to regard the same tax as "abridging the freedom . . . of the press" of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.

That's a long excerpt, so let's pull out two important points: first, the Free Exercise Clause prohibits the government from "lend[ing] its power to one or the other side in controversies over religious authority or dogma", and second it allows for the broad regulation of society in manners that affect individual and group religious liberty, as long as "prohibiting the exercise of religion... is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision".

One more important point, Scalia rejected the Court's precedents that would have required the state to articulate a "compelling state interest" before allowing a law to take precedence over an individual's free exercise of religion. If Douthat believes it is the secularists who were responsible for weakening that protection, he's looking in the wrong direction.

That is to say, Douthat is ignoring every conservative approach to constitutional interpretation, appears disinterested in learning the interpretation provided by even the most conservative, most religious Supreme Court Justices, and advocates a personal interpretation of the Constitution's language consistent with a 20th century understanding of its terminology - and at that, not a broad understanding, but a personal understanding. The theological equivalent would be for him to pick up a bible, read one verse, and announce that he knows exactly what it means - no need to examine history, context, the opinions of past religious leaders, the teachings of his church. In both cases, it's the sort of personalized, shallow interpretation that has long been scorned, respectively, by political and religious conservatives.

Douthat remains upset that the government is regulating birth control in the context of the secular operations of religious organizations. Yet any form of health insurance is going to cover procedures or medicines that violate somebody's religious beliefs. Douthat prefers to misrepresent the facts, purporting that the regulation treats "religious hospitals, schools and charities as purely secular operations", knowing full well that's not the truth. For example, a religious school that hired few, if any, non-practioners of its faith, and catered to a similarly non-diverse student body would not be affected by the regulation. But more than that, although Douthat does not mention private employers, the logic of his intepretation of the Free Exercise Clause would extend his objection to the mandate to purely private contexts.

What would happen if a religious organization, or a religious private individual, acquired Douthat's employer and stripped out of his insurance policy coverage for procedures and medications inconsistent with somebody else's religious beliefs? It's not apparent that Douthat has even considered that possibility. If he has, it would appear either that he does not believe that the rules he favors are likely to affect him - that is, he does not anticipate such an employer acquiring the Times - or would view the new owner's religious views as unduly extreme and thus not worthy of protection. Fortunately for Douthat, even within the context of birth control he suffers no direct impact.

Douthat also complains that a judge in Cologne, Germany - apparently operating under the wacky belief that his court is not regulated by the First Amendment to the U.S. Constitution, held that "circumcision as a violation of a newborn’s human rights". Douthat takes umbrage at the notion that a judge could impose such a rule in relation to a baby boy, but makes no mention of baby girls. Yes, there are serious differences in kind and degree between male circumcision and female "ritual genital mutilation", but those concerns are secular. Douthat complains,

Here again, defenders of the decision insisted that it didn’t trample on any Jew’s or Muslim’s freedom of belief.

Douthat, predictably, does not identify even a single person who claims that the ruling does not impinge on "any Jew’s or Muslim’s freedom of belief" because if he were to approach the supporters' case honestly he would have to acknowledge that they are in fact supporting a balancing test - the rights of the child against the rights of the parent to perform a medical procedure that the parent believes is mandated by religion. Douthat can't keep himself from resorting to hyperbole, that the ruling "would effectively outlaw Judaism itself", as if no Jew has ever had an early or late circumcision, or as if it's impossible for a boy or man to convert to Judaism once he's nine days old. I don't mean at all to belittle the religious issue, but there's no need for that type of sensationalism.

The fact that Douthat has to reach all the way to Germany to find evidence of an encroachment on religious liberty is less evidence of the rarity of this type of conflict, and more of the fact that Douthat's argument is driven by his own ideology. He could instead pick up the cause of parents who, in the name of their religion, would deny an infant or child a potentially life-saving blood transfusion.

Douthat's third and last example is "the great Chick-fil-A imbroglio". Although a handful of politicians to whom Douthat alludes are deserving of cricism for suggesting that they might discriminate against Chick-fil-A based upon the statements of its founder, Douthat is confusing the exercise of speech rights with the free exercise of religion. He also fails to distinguish fair comment - a politician's standing up for the rights and freedoms of his own constituents - for interference with the free exercise of religion.

Does Douthat believe that the president of Chick-fil-A's statement was mandated by his religion? No? Then what we're seeing is his choice to make a public statement about his personal religious beliefs. While that might fall under Douthat's made-up version of what the Free Exercise Clause is supposed to mean, from a constitutional perspective we're actually talking about freedom of speech. The president of Chick-fil-A has the constitutional right to say what he wants about gay marriage based upon his religion, and everybody else in the country has the right to respond with support, condemnation or indifference. Even within the context of grandstanding politicians it's a speech issue - no politician or political entity has actually discriminated against Chick-fil-A based upon its president's statement.

Also, within the context of religion, what are we to make of Douthat's assertion that the president of Chick-fil-A "supports 'the biblical definition of the family unit'"? Because last I checked, the Bible included some family units that, by today's standard, are quite unusual. Even if we limit discussion to the New Testament, Douthat will find no shortage of people who will quote scripture to support their belief in polygamous marriage.

Whether intentionally or because he can't help but view the world through a manichean prism, Douthat creates a false dichotomy between the president of Chick-fil-A and the politicians, with the president simply engaging in the free exercise of religion and the politicians are, de facto, neither religious nor concerned about the free exercise of religion. Is Douthat seriously arguing that Mayors like Rahm Emanuel and Michael Bloomberg don't care about religious freedoms? That they're on the side of secularists who would back judicial edicts that "effectively outlaw Judaism itself"? And has Douthat truly failed to notice the considerable criticism of the political grandstanding from the secular community? I recognize that it's easier to caricature your opponents, to roll up every person who takes any position you don't like, to ignore their actual statements, and to pretend they're a monolithic "other" that stands against all that is true and good. But even if he can't reach the point of internal consistency, can't Douthat at least try to be plausible?

Toward the end of his column, Douthat mentions the need to balance the free exercise of religion against the interest of society, but rather than giving that difficult balance the serious consideration it deserves he invokes the absurd,

We do not allow people to exercise beliefs that require, say, forced marriage or honor killing. You can believe in the gods of 15th-century Mesoamerica, but neither Chicago values nor American ones permit the use of Aztec sacrificial altars on the South Side.

Again, it's the easy cases. The ones few to none would find controversial. The implication is, "The judge thinks that circumcising male babies is akin to human sacrifice," rather than examining the court's actual rationale and the actual balancing of interests that the court attempted to achieve. Harder cases, like denying a child antibiotics for an infection, a blood transfusion for surgery, or medical treatment for an easily treatable ailment that, left alone, is life-threatening or terminal? Douthat, it seems, has no interest in the difficult questions.

Even in the context of his examples, though, it's surprising that Douthat can't find a parallel. Why do we forbid honor killing in the name of even the most sincere religious belief? Why do we forbid parents from forcing their children to marry in the name of religion? Because we recognize that the parent's free exercise of religion can affect their child, and that the child is a separate individual with rights that may justify overriding the parent's religious beliefs and, at a certain age, that it should be the child's choice as to whether to follow the religious beliefs of a parent or to choose a different path.

The judge in German was not forbidding circumcision - he was holding that the procedure could wait until the child was old enough to make an informed decision. While you can disagree with that decision on a number of grounds, if you accept that society can forbid parents from completely disregarding a child's autonomy and individual rights in the name of religion, we're talking about a ruling that differs in degree from the circumcision ruling but not in kind.

If you read Douthat, no surprise here, no small part of his argument is predicated upon the fact that he's not comfortable with sex, and is particularly uncomfortable with female sexuality.

To the extent that the H.H.S. mandate, the Cologne ruling and the Chick-fil-A controversy reflect a common logic rather than a shared confusion, then, it’s a logic that regards Western monotheism’s ideas about human sexuality — all that chastity, monogamy, male-female business — as similarly incompatible with basic modern freedoms.

Nobody familiar with Douthat's past writing is going to be surprised that when he thinks of birth control he thinks of slutty coeds trying to get into his pants, not of married women who want to limit the size of their families or women of any age trying to address conditions such as endometriosis and menstrual cramps. But it astonishes me that to Douthat, the sole reason that a judge might be concerned about circumcision would be that it might "deny one’s offspring the kind of sexual gratification that anti-circumcision advocates claim the procedure makes impossible". When he writes,

[Religious ideas] certainly cannot be exercised in ways that might make anyone uncomfortable with his or her own sexual choices or identity.

Douthat gets it exactly backwards. It's not others who want to limit his exercise of his religion lest he "make anyone uncomfortable with his or her own sexual choices or identity" - it's he who wants to impose his religious values on the rest of society so that he never has to feel uncomfortable with his own, awkward sexuality. And believe it or not, from there Douthat's thinking becomes even more convoluted,

It may seem strange that anyone could look around the pornography-saturated, fertility-challenged, family-breakdown-plagued West and see a society menaced by a repressive puritanism. But it’s clear that this perspective is widely and sincerely held.

I'm looking around... funny, I can't see any pornography from here, my marriage seems intact, I have a child so I can't be all that "fertility challenged"... although I suspect that Douthat means the opposite, that the challenge of fertility he perceives is that, believe it or not, some people want to have sexual intercourse while avoiding pregnancy. The only intrusion into my conservative family idyll is a nag of a columnist lecturing me about the decay of society. So I guess from where I'm sitting, at least at the moment his puritanical bent is a bigger issue than our decadent society.

To be more fair to Douthat, yes, it's difficult to conceive of a religion that would not find fault with some aspect of our society - whose practitioners would not find something to be at odds with their sincerely held religious beliefs. That, however, has been the case for all of human history. Yes, like Douthat many religious people will be uncomfortable with our society's treatment of sexuality. But let's be honest, you don't even have to be religious to take issue with our society's approach to sexuality, nor is it only the non-religious who engage in sexual practices that would make Douthat blush.

Douthat believes that the use of birth control is morally wrong? Fine, great, nobody's making him use it. But let's not pretend that there aren't millions of devout Catholic men and women who don't share his dogmatism on the issue. He is free to lecture them that they're not being true to the teachings of their church, and they have every right to ignore him. A constitutional right, at that. It's not those men and women who want "to use the levers of power to bend [Douthat] to [their] will" - again, it's quite the opposite.

When Douthat complains that anybody who disagrees with him necessarily "regards Western monotheism’s ideas about human sexuality — all that chastity, monogamy, male-female business — as... incompatible with basic modern freedoms", he's quite incorrect. But it's perfectly reasonable to point out that much of the "chastity, monogamy, male-female business" emphasis of "Western monotheism" was historically directed not at regulating boys and men, but at regulating girls and women. Not that Douthat would care, but the 20th Amendment - granting women the right to vote - is still less than a century old.

We're similarly not that far removed from an era in which our nation had legal slavery, and even closer to an era in which interracial marriage could result in incarceration - and in both cases, you could find defenders of the practices who advanced sincere, Christian religious arguments in favor of the status quo ante. Now, I expect Douthat would find it obvious that Christianity holds slavery and racial discrimination to be abhorrent. When the government says, "You have to let African Americans rent rooms in your hotel," that offends some hotel owners' free exercise of religion. When society forces changes of that type, is it a bad thing, period, end of story, because it offended some people's religious sensitivities at the time, or can we accept that after a period of adjustment most religious institutions will find themselves agreeing with the change?

Contrary to Douthat's suggestion, our society has a long and proud puritanical streak. While it does not bother Douthat, and perhaps he would even prefer that it were more dominant, there are people in our culture who object to the treatment of women as second-class citizens, and who find it objectionable that people like Douthat use their religious beliefs to advance public policy that makes it more difficult for women to participate in society as equals. It is in fact possible to recognize our society's puritanical streak and recognize that some aspects of our popular culture are, to put it mildly, over-the-top. If you spend time actually looking at our society, both aspects are very hard to miss.

If you want to cloister yourself among people of your religion, living in seclusion, untouched by the corrupting elements of society at large, you have every right to do so. What you cannot reasonably expect to do is to come out of that seclusion into greater society without ever being offended, and you cannot reasonably expect to engage with a larger society that does not share your religious values without ever having those values weighed against the needs and rights of others, and of society as a whole. And sorry, if it feels like society is "bending you to its will" when it tells you that you cannot impose your religious beliefs on others, such is the consequence of living in an open society where others are also permitted to hold and exercise religious beliefs of their own, even if they differ from yours.

NFIB v Sebelius - A Tempest in a Tea Party?

Jonathan Adler appears to have come to recognize that despite the two years of hand-wringing, bell-ringing, and "The End is Nigh" announcements about "Obamacare", and the vitriol directed at Justice Roberts, the upholding of the ACA isn't actually a big deal.

Right-Wing Bullying of Justice Roberts

Randy Barnett, inventor of the "activity/inactivity" distinction takes us back to the days before the Supreme Court decided the ACA case, and quotes himself approvingly. You see, after reading those great legal scholars, Jennifer Rubin and Kathleen Parker, it occurred to Barnett that if Roberts did anything other than overturn the ACA his reputation would be forever stained:

Now, however, if the Chief Justice rules to uphold the ACA after all these nonlegal pleas and threats, he will always be suspected by both supporters and opponents of the ACA of having changed his vote in response to this political pressure. As with Justice Owen Roberts’ vote, the supporters of the law will cheer and the opponents will complain, but both groups will have reason to believe that Chief Justice Robert’s decision reflected political considerations rather than his considered legal judgment in a close case. And, because Supreme Court deliberations are secret, he cannot defend himself by revealing that he did not in fact change his vote after conference.

Secret, that is, if we ignore the leaking from somewhere in the ranks of the dissenters, meant to embarrass Justice Roberts.

I've already suggested the first question raised by Barnett's brand of character assassination: None of this matters unless you believe Roberts is the sort of person who will bend to political pressure. If he will not, the story is over before it began - before the political right, through the pens of people like Kathleen Parker and Jennifer Rubin, implied that any vote except reversal would forever tar Roberts' reputation. If he is, then it's a distinction without a difference - whatever his vote, whether or not he had a change of heart somewhere along the way, people on the right perceived Roberts as being pliant to political pressure, their ultimate disappointment being that for some reason he bent the wrong way.

But more than that, when Barnett speculates about pressure on Roberts from "President Obama, Senator Leahy, and pundits like Jeff Rosen", exactly what form does he imagine that "pressure" could take? Exactly why is it that he believes Roberts would care what President Obama thought of an issue, let alone respond to "pressure" from the President? Of all the nonsensical right-wing conspiracy theories we've endured over the past few decades, the idea that the President has the power to cow the life tenured Chief Justice of the Supreme Court is right up there with the best of 'em.

It's even harder to imagine what Senator Leahy might have done that would cause Roberts to feel any amount of pressure. (Massage his shoulders?) Jeffrey Rosen? Does Barnett imagine that Rosen teaches at Hogwarts instead of George Washington University and somehow got his hands on the Elder wand? Rosen himself addresses the absurdity of the argument:

The idea that I was trying to “intimidate” or “bend” the Chief Justice came as a surprise to me. The justices have already voted in the health care case and are hardly influenced, in any event, by legal punditry. On the contrary, I suggested that this is a moment of truth for Chief Justice Roberts because I’ve been a staunch supporter of the vision of bipartisanship that he articulated when he became Chief Justice, and have continued to defend him during the past six years when others have denounced him for failing to live up to the standards he set for himself.

Yeah, but what do facts have to do with an otherwise good conspiracy theory?

So far we seem to be dealing with the following:

1. Somebody leaked to the right-wing media that Roberts might vote to uphold the ACA.

2. A number of right-wing political columnists, largely of the hack variety, started to write editorials claiming that Roberts was coming under pressure from the political left, and how atrocious that was.

3. No evidence was ever produced of any form of actual pressure on Roberts from the political left, let alone of why he would have been receptive or responsive to any such pressure.

4. Roberts ultimately voted to uphold the ACA.

5. Many on the political right has since engaged in a relentless attack on Roberts.

Sorry, Randy, but this whole thing appears to be on the political right. I don't know if you thought Roberts was pliant to right-wing pressure and would always vote the way you wanted on important cases, but if you did not it's difficult to believe you would continue to push this issue. The only evidence of pressure on Roberts, implied threats against his reputation (as opposed to mere observations of how history might treat his decision) have come from the political right. Since the decision came down, the only efforts to trash his reputation have come from the political right.

So far, I see no reason to believe that Roberts cares about all of the right-wing furor, or the implication that he can expect this type of personal attack every time he rules the "wrong way". After all, he has never shown even the slightest concern about opprobrium from the political left resulting from any of his past decisions. Do those on the political right who are still pushing this line of attack believe otherwise? Are the attacks a form of prolonged venting of misdirected anger? Of disappointment that he's a mindful as opposed to mindless partisan? Are they hoping to make Roberts or other justices more responsive to their pressure in the future?

Really, why do these attacks keep on coming?

Republican Illogic on Mandates vs. Taxes

Romney, as you would expect from his history, is a personification of the incoherent Republican attack on the ACA mandate and Justice Roberts.

1. It is beyond question that the health insurance mandate is not a tax.

"It’s not a tax hike," Romney responded. "It’s a fee. It’s an assessment." Businesses and workers who purchased health insurance already paid an assessment to help fund the "free care" pool, he noted, and "it makes sense to expand this assessment."

2. Justice Roberts was wrong, terribly wrong, by upholding the healthcare mandate by calling it a tax.

"Well, I certainly wouldn't nominate someone who I knew was gonna come out with a decision I violently disagreed with — or vehemently, rather, disagreed with," Romney said. "And he reached a conclusion I think that was not accurate and not an appropriate conclusion. But that being said, he's a very bright person and I'd look for individuals that have intelligence and believe in following the Constitution."

3. On the other hand, it is beyond question that the healthcare is a tax and how dare President Obama raise taxes?

Asked by CBS correspondent Jan Crawford why he thought the mandate was not a tax, Romney replied: "Well, the Supreme Court has the final word, and their final word is that Obamacare is a tax. So it's a tax."

If Romney (or his party) were worried about credibility, he would consider whether his attacks on Roberts and the Supreme Court were consistent with his simultaneous assertion that Roberts, and thus the majority that upheld the ACA, was correct in his decision - which would also mean that the dissenters got things terribly wrong. But when a candidate like Romney finds that demagoguery works better than logic, you get demagoguery.

Justice Roberts, Institutional Integrity and the Lesser of Two Evils

As many on the political right continue their attempt to vilify Justice Roberts, one argument that is repeatedly raised is that Roberts somehow failed in his duty by choosing to uphold a law he believed to be unconstitutional. It is difficult to believe that people who advance that argument have read the court's opinion or have considered the issues; but I guess it's easier to speculate based on gossip than to think things through.

I've touched on this before, but let's make it simple: Imagine that you're a Supreme Court justice, presented with a law that you believe to be unconstitutional in part under a Commerce Clause analysis, but on the whole to be perfectly constitutional and non-controversial. You have four colleagues who take the position that the entire law is constitutional. You have another four colleagues who take the position that although your analysis is correct, the entire law must be overturned because... they say so.

Even without considering the novelty of the legal theory that is being used to attack the law - a less than two year old theory, minted by a right-wing law professor with the specific goal of attacking the specific law under discussion, and which is exceptionally unlikely to be relevant to any court decisions during your lifetime, or perhaps for the remaining history of the nation - the conundrum is clear: You are but one vote. Whichever side you join, by your analysis the outcome will be less than optimal - either the entire law us upheld or the entire law fails.

Do you stroke your chin and ask yourself, "Should I find a way to uphold a law I believe is (in part) unconstitutional, in order to preserve the integrity of the court," or do you instead ask yourself, "As part of my general duty to my office and the nation, do I pick the most judicially conservative outcome?" Roberts past votes suggest that he is not reticent about overturning precedents or invalidating laws he views as unconstitutional, no matter what controversy might result.

Let's now assume that you can find a way to join with the dissenters in their reasoning as to why portions of the law are unconstitutional, but then fall back on a somewhat strained, alternative theory pursuant to which the provision can be sustained within the context of established constitutional law. On the other hand, you can find no constitutional basis for the excesses of he dissenters - you see them as engaging in unbridled activism, reaching far beyond what the law and constitution dictate in order to advance a political agenda. In such a context your decision to take the former path is not premises upon fear that joining the dissenters will result in attacks on your reputation or the Court's - it will be your concern that you would deserve that treatment and that your dereliction of duty would be harmful to the court.

It now appears that the leaks about Roberts potentially upholding the law started at least a month before the decision was issued. In that context absurd, right-wing attacks on the left as trying to pressure Roberts may well have been in response to those leaks. You don't have to pay much attention to the Court to know that it has been dealing the political left defeat after defeat for many decades. Further, the notion that Roberts would gain any credibiity with the left that would overcome existing skepticism based upon his established track record, let alone credibility that won't disappear the moment he joins with the dissenters to decide, for example, an issue that's not properly before the court, to order an issue rebriefed and reargued so he can decide a different issue, or endorses new constitutional theories that are not actually premised on anything you can find in the Constitution.

You want vilification? Mark Thiessen proudly engages in right-wing vilification, attacking every Supreme Court appointee from the past thirty years except for Thomas, Scalia and Alito. If you think that's based on anything more profound that Thiessen's personal political agenda, it's not because you're informed. Even in the context of the ACA decision, and Kennedy's attempt to hold the entire Act unconstitutional, Thiessen is tossing fuel on a pyre with Kennedy's name on it.

There's no harm to Roberts in upsetting the "left" - the angrier he makes the left, the more of a hero he becomes to certain, presently dominant factions on the right. The articles accusing "liberals" of trying to pressure him seem, in retrospect, to have been a preemptive strike against Roberts - a warning that if he did not strike down the entire law, he would be vilified as being weak, and of caving in to pressure from the left.

And, surprise, that's exactly what is happening.

Justice Roberts, Apostate!

David Frum knows a little bit about apostasy. His abrupt termination by the AEI¹ was reportedly triggered by his "Waterloo" argument, that by choosing to fight healthcare reform rather than participate in the process the Republican Party missed the opportunity to potentially help craft a more conservative bill.

Since his termination, Frum has been attempting to reinvent himself as a different sort of Republican, a sensible Republican who longs for the good old days of bipartisanship (i.e., 5 Democrats joining a Republican bill) and who complains about partisanship, the unseemliness of right-wing radio hosts, and the like. His quest to reinvent himself has not found him a new home in the Republican Party, nor has his retreat from his own past excesses been forgotten by those who might be his allies but for his past attacks. But if Jeb Bush's apparent gamble on the Republican Party's return to moderation is credible, perhaps he'll seem like less of a Cassandra and more of an opinion leader.

Back in his AEI glory days, Frum appeared to be participating in what I jokingly suggested might be a contest between himself and two of his former Bush Administration speechwriting buddies, his ex-boss Michael Gerson and his fellow backbiter Marc Thiessen. The contest appeared to be, who could make the dumbest possible statement about an issue of public controversy and still be taken seriously. The AEI termination led to Frum's gradual, overall withdrawal from the contest - a choice he may regret, given that the apparent prize for the winner(s) is a sinecure on the Washington Post Op/Ed page.

I alluded to Gerson's commentary on the Supreme Court's decision upholding the ACA while poking fun at the ridiculous Peggy Noonan, but that wasn't entirely fair to Frum. Although he does see the Court's decision as contradicting the Republican Agenda, his criticism was directed not at Roberts but at the Republican Party. Once it was Waterloo, now it's a 100 Years War.

On the whole, Marc Thiessen is the clear contest winner - the guy whose arguments are usually devoid of fact or reason, with no apparent consequence to his standing as a conservative commentator. Michael Gerson's columns have gradually faded into mediocrity. It's if he can barely muster the energy to gather the kindling, leaving poor Marc not only to collect the firewood, but also to identify the heretics who must be burned.

When I saw Thiessen's piece today, titled Why is Fred Hiatt So Awful at Picking Op/Ed Columnists Why are Republicans so awful at picking Supreme Court justices, it seemed lucky for Frum that he had thrown in the towel. Thiessen lectures us that,

Democrats have been virtually flawless in appointing reliable liberals to the court. Yet Republicans, more often than not, appoint justices who vote with the other side on critical decisions.

If you actually follow the court, you will recall Justice Stevens' observations that his "transformation" from "conservative" to "liberal" did not actually involve his changing any of his opinions - it resulted from the court's dramatic shift to the right. Reagan's policies and politics would be far too liberal for the modern Republican Party. He appointed his nominees before the individual health insurance mandate was created and advocated by conservatives and the Republican Party, so it shouldn't be particularly surprising that his nominees represented a different brand of conservatism.

Thiessen also forgets that the task of nominating candidates for the Supreme Court belongs to the President, not to the party. Prior to G.W.'s presidency it was difficult to imagine that the Republicans would turn on a president's nominee in the manner in which they turned on Harriet Miers. Thiessen complains that Supreme Court justices don't share his preferred political agenda, and aren't consistently trying to advance his preferred agenda through their service on the Court? Maybe that's because Presidents Reagan and George H.W. Bush didn't share Thiessen's agenda, and thus didn't apply his litmus tests when selecting candidates. Perhaps also, Supreme Court Justices don't see their job quite the same way Thiessen does.

And that's before we get to the silliness of Thiessen's suggestion that the justices appointed by Democratic Presidents always vote against Thiessen's agenda "on critical decisions". As they say, it all depends on whose ox is getting gored.

Thiessen prattles on with the notion that "Conservatives are pariahs if they vote against the left on certain issues. But if they cross over vote with the left, they are hailed as statesmen." Hardly. Kennedy, generally regarded as the "swing vote" of the current court, is not hailed as a statesman. He's often characterized as having a weak and inconsistent approach to the Constitution, and of tending to patronize women. Who does he imagine he's talking about? Rehnquist? Scalia? Thomas? Alito? Because one example from one case, with cherry-picked quotes from a handful of sources, does not constitute a pattern - even if we ignore the fact that "pre-emptive" attacks are irrelevant to his argument and that it's conservatives like himself who are engaged in the behavior he supposedly deplores.

Thiessen's on a roll,

Liberal nominees can simply affirm liberal positions, while conservatives must speak cryptically in terms of their judicial philosophy.

A statement that leaves me with the firm impression that Thiessen has never read a Supreme Court opinion - majority, concurring or dissent - by any of the Justices he's attacking. If you read a typical Scalia or Thomas opinion and are left scratching your head, "Is he a conservative? It's so... cryptic", all you've established is that you're a dolt.

Thiessen whines,

But legislate from the bench is exactly what Roberts did last week. The law’s proponents consistently rejected the notion that the individual mandate was a tax. But Roberts effectively redrafted the statute, making the mandate a tax in order to declare it constitutional....

That is the kind of sophistry we expect from liberals. The left sees the law as a tool of social justice — so they start with the desired outcome and then come up with legal reasoning to justify it. That is what Roberts did last week. He decided he wanted to uphold Obamacare and rewrote the statute to fit that outcome.

Talk about turning history on its head. Two years ago when the bill passed, conservative commentators regarded it as all-but-certain to pass muster with the Supreme Court. Then, months later, a right-wing law professor invented the "activity/inactivity" distinction that became the centerpiece of the legal attack on the ACA. And it almost worked. As Thiessen knows, Roberts endorsed that newly fabricated "magic bullet" argument - the one that was supposed to take down the ACA (or at least its key elements.

Had the four dissenters joined Roberts in overturning only the mandate and the associated community rating / preexisting condition provisions of the ACA, I think Roberts would have joined with them and that hacks like Thiessen would be praising his brilliance. But Roberts had just one vote to cast. With four Justices voting to uphold the bulk of the ACA, four hungering to overturn the entire Act - including provisions that are already in effect and have absolutely no relation to the mandate - Roberts chose the more judicially conservative approach. Thiessen should perhaps address his anger at the dissenters who, as a result of their eagerness to throw the baby out with the bathwater, ended up preserving both.

No, there's no real intellectual satisfaction to "We'll call it a tax and, voila, constitutional," but that was the avenue that allowed Roberts to join with the dissenters on issues that a better legal analysis would have required him to reject. The better approach would have been either to apply a traditional Commerce Clause analysis, applying existing precedent and discussing the proposed "activity/inactivity" distinction within that framework. Although there's some debate over whether it constitutes dicta or holding, Roberts attempted to articulate a new framework - but in order to avoid a form of activism that would take center stage in Constitutional Law textbooks for decades to come, he found an alternative path to upholding the ACA.

Thiessen sees only two reasons why Roberts would have changed his vote, "[that] he was suddenly convinced by his liberal colleagues, or simply had a failure of nerve". Thiessen apparently cannot contemplate the possibility that given a forced choice between (virtually) all or nothing, Roberts chose the conservative approach - eschewing the activism that hacks like Thiessen claim to detest but, as evidenced by his poisonous diatribe, actually desire. Thiessen falls victim to self-parody,

We need jurists who not only have a philosophy of judicial restraint, but the intestinal fortitude not to be swayed by pressure from the New York Times, the Georgetown cocktail circuit and the legal academy.

Which columnists do you suppose you're more likely to find at a Georgetown cocktail party - those of the New York Times, or those of the Washington Post? Which paper does Thiessen, who is explicitly trying to punish, diminish and marginalize Roberts for voting "the wrong way" on a case, work for, again? What's the point of Thiessen's vitriol, or of his long history of seeking out heretics and calling for their destruction, if not to influence them and others - to try to intimidate them into toeing the party line? And the legal academy? Which justices adhered to precedent and two centuries of Commerce Clause jurisprudence, again? And which glommed onto a less than two-year-old theory concocted by a law professor, then championed by others, as a means of defeating the ACA? Thiessen is entitled to his own opinion column, but not to his own facts.

I was going to declare Thiessen the hands-down winner, but before I had a chance to write anything Gerson came up with a late entry. Another "facts be damned" whine about how conservatives justicescare too much about the institution of the Court to simply aren't able to ram through the Republican agenda.

Perhaps channeling his inner David Brooks, king of the false dichotomy, Gerson pontificates that there are "two varieties of judicial conservatism — institutionalism and constitutionalism".

In [an institutionalist's] view, the court maintains its power by exercising it sparingly — deferring whenever possible to the legislative branch. Institutionalism embodies a temperamental conservatism — a commitment to continuity, humility and prudence.

[Constitutionalists focus] on the rigorous application of the words of the founding document. In this view, the meaning of the text is primary, whatever the political consequences of applying it.

So within the context of this decision, in which five Justices - the dissenters and Roberts - looked at the following Constitutional language:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

And concluded that the text includes an absolute prohibition on the regulation of what the Court determines to be the regulation of inactivity - imposing a penalty on a person who chooses not to engage in a specific form of commerce - no matter what the facts or how compelling the circumstances. The fundamental "reasoning" for the prohibition is that, although states have long imposed mandates without controversy or excess, to allow even the most modest of mandate in even the most compelling of circumstances would inevitably lead to the government forcing people to buy broccoli. That argument is neither textual nor logical.

Meanwhile it is possible to be a close adherent of the text of the Constitution while also believing that the Court needs to protect its credibility as an institution. Gerson defends the judicial activism of the justices he purports to be constitutionalists, suggesting that they're pushing back against "liberal activism", but that's a self-serving, political argument. In the present case, the concurring opinion represents both the better textual interpretation and (as Gerson concedes) the "institutional conservatism" that Gerson would have us believe is somehow solely the province of Roberts. (Sorry, Michael - Roberts has only one vote - he needed to join with four others for that vote to count for anything.)

Gerson shares, and perhaps parrots, Thiessen's complaint that Roberts turned to Congress's power to tax as his basis for upholding the law. He then presents an addle, social science argument that the mandate might work as a "mandate" but by revealing to people the supposed secret that they could actually choose not to buy insurance and pay a penalty, Roberts has made it more likely that people will regard their choice in economic terms and now be more likely to pick the penalty if they think they'll save money. Seriously? One hardly dares tell Gerson that such "reasoning" has no place in the constitutional analysis of a statute.

Gerson opened his column by casting aspersions on Earl Warren, and closes by cautioning Justice Roberts, in effect, that if he doesn't shape up and start doing what the Republican Party wants him to do, he can expect hacks like Gerson to argue that he's the "new Earl Warren".

On the whole, Gerson seems to be parroting arguments raised by others, perhaps including Thiessen, so I think Thiessen takes the round.
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1. For somebody who cherishes intellectual rigor and honest debate, being fired by the AEI would be a badge of honor... but I presuppose that such a person could get hired by the AEI.

Repeal and Replace? Bring It On!

But no more idle talk - let's hear the actual policies and see the actual proposed legislation. We know from their past demagoguery that the Republicans can resolve the issues addressed in the Affordable Care Act with legislation that is short and breezy, and they've supposedly been working on the issue for years. Remember - to their credit, they were the originators of the core elements of the ACA.

I recognize that some Republicans develop a terrible case of writer's block when it comes to reducing even simple ideas to the form of a bill. But I would urge them to try to get over whatever is holding them back, and to show us their actual plan.

The ACA, as constructed, is deeply flawed - few, if any, dispute that. So there's lots of room for evolutionary or even revolutionary¹ improvement. Let's see what you've got.

No more fantasies about "Maybe after President Romney appoints some new justices we'll be able to take this back to the Supreme Court", though. Let's try to respect both the outcomes of elections and the legislative process. You have to have at least one idea you can put on the table, no?
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1. No, carrying pictures of President Obama depicted as, say, Chairman Mao isn't the sort of revolution of which I speak, although I'll give your supporters credit for proving the Beatles incorrect.

Justice Roberts, a Bully?

Not quite on par with those who inspired me to poke fun at Peggy Noonan, but really? Ilya Somin argues that, in light of the ACA ruling, then-Senator Obama's comments on Justice Roberts seem prescient, that in his "history of public service...[Roberts] has far more often used his formidable skills on behalf of the strong in opposition to the weak". Somin argues that the ACA ruling fits that description, fancifully arguing that,

Justice Roberts sided with “strong” insurance companies (who are major supporters of the individual mandate) and “those in power” in the “executive branch and the legislative branch” against the comparatively “weak”: small business and the majority of ordinary voters who opposed the mandate and wanted it invalidated.

Somin then admits that he does not believe that Roberts was "motivated by any great love for insurance companies or hostility to 'the weak'", but that "it’s ironic¹ that his ruling in this crucial unintentionally fits Obama’s 2005 critique of his record".

With all of the years Roberts has been on the court, and all of the instances in which the Court has explicitly sided with the legislature or with monied and powerful interests² when they were lined up against much weaker opponents, Somin picks this case as his first (and presumably best) illustration of Obama's point?

Seriously?

In this world in which the "broccoli mandate" is advanced as a serious argument for why a health insurance mandate would inevitably lead to atrocious overreach at the federal level - but be completely acceptable and virtually free of risk at the state level - have we lost touch with the concept of "self-parody"?
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1. A black fly in his chardonnay?

2. Under Somin's strained - dare I say overwrought - interpretation of Obama's statement, most cases that come before the Supreme Court have powerful interests on both sides.

Public Approval of Supreme Court Decisions

Ilya Somin is watching the polls, and wants us know that a new opinion poll shows the Court's opinion to be unpopular. He argues that although public opinion appears to be shifting in favor of the law,

The difference may well be the result of the fact that a substantial minority of the public will tend to assume that any decision the Court makes is likely to be right unless they have very strong personal feelings on the subject.

Nonetheless, this result undermines the notion that the ruling will be a boost to the Court’s legitimacy or that its public image would have suffered had it ruled the other way. It’s unlikely that the Court’s legitimacy improved much in the eyes of anyone but committed liberals and legal academics.

But as Somin admits, pubic opinion of itself "says very little about whether [a] ruling is right or wrong" and some Supreme Court opinions that, in retrospect, seem backward, even atrocious, were popular at the time they were issued. Let's recall also that some opinions that were broadly unpopular, or unpopular in the regions of the country most affected by the outcome, now enjoy broad public support and acceptance. Somin notes that First Amendment opinions on flag burning, although legally correct, are unpopular.

In other words, a snapshot of public opinion means next to nothing.

I personally believe that Roberts crafted this opinion to try to quiet a lot of sound and fury in a manner that, quite possibly, will end up signifying nothing. I am skeptical that any of the significant holdings of the court will pose a problem to future sessions of Congress. You can't modify a federal grant without allowing states to maintain the status quo because that would be too coercive? Okay - we'll explicitly end the old program and create a new one. You can't impose a mandate under the Commerce Clause? We'll rephrase, or make it a tax. The case as it stands will most likely signify a turning point toward or away from the dissenters' perspective on the limits of the Constitution, but Roberts otherwise seemed to be composing an outcome he expects history to largely forget. Legal scholars will take note if future cases build off of this decision, but beyond that there's not much to remember. Reversing the ACA? That would have been an opinion for the history books.

Somin argues,

I do not believe that the Court should decide cases based on the perceived effects on its “legitimacy.” But for those who disagree, the individual mandate decision was not the great triumph that some imagine it to be.

In a big picture sense, of course the Court shouldn't focus on its "legitimacy". It should focus on the law and Constitution. Nonetheless, it will inevitably be presented with difficult questions for which there is a genuine difference of opinion about constitutionality, and it's appropriate for the Supreme Court in those contexts to consider its role in our system of government - as one of three co-equal branches of government - and to act as a court, not a legislature.

That's something conservatives have argued for years - that "judicial activism" harms the court as an institution. While reiterating that "judicial activism" is often a subjective concept and, depending on how you define it, does not have to involve acting outside of the scope of the Constitution and can actually benefit society - Brown v. Board is widely regarded as an activist decision - there's a lot of merit to the argument that political victory should come at the ballot box and not the courthouse.

That argument seems considerably stronger when a court is asked to review legislative action, as opposed to inaction, and again stronger when the legislation at issue was a significant issue in that party's election campaign. When the best the Supreme Court can say on a difficult constitutional question is, "It's a coin toss," there's a certain, potentially corrosive arrogance to nonetheless rejecting the opinion of both the Executive and Legislature that a particular legislative act is constitutional.

I believe that Roberts is aware that this is his court and his legacy, and that his status as Chief Justice of "The Roberts Court" influences how he approaches cases. But to the extent that thoughts of a legacy influence a judge, its better that the effect be to inspire modesty than arrogance.

Republican Pressuring of Justices is.... Par for the Course?

Ah, memories....

Novelist John Grisham could hardly spin a more provocative fiction: The Republican Party and its surrogates mount an aggressive campaign to intimidate the chief justice of the United States, implying ruin and ridicule for his failure to vote in a pivotal case according to the political party's wishes.

If only it were fiction.

The justice is, of course, John Roberts, and the case involves the Affordable Care Act (ACA), aka "Obamacare," which would be affordable only if the court upheld the individual mandate requiring all Americans to buy health insurance.

The right's narrative goes as follows: If the justices don't side with the Obama administration, they will be viewed as brilliant and nonpartisan. If the reverse occurs, why then, the justices are partisan, judicial activists who have delegitimized the court.

Right-wing radio personality, Bryan Fischer laid it out for Roberts, whose vote proved decisive: Roberts "is going down in history as the justice that shredded the Constitution and turned it into a worthless piece of parchment," adding that Roberts acted "more like a demolitions expert" than as an "umpire". Rep. Mike Pence (R-IN) compared the health care ruling to Sept. 11. Breitbart News editor Ben Shapiro sniffed that Roberts "was the worst part of the Bush legacy". Of course, had the Roberts court struck down health-care reform by a partisan 5-4 vote, then the chief justice's performance of his role as a conservative arbiter who puts law ahead of politics would be championed as an unqualified success.

Lest there be any lingering confusion, permit me: You didn't vote our way, Justice Roberts, so you will go down in history as having abrogated your duty; your reputation will be destroyed; and the country will hold you accountable not only for upholding legal concepts that were once embraced but now rejected by conservatives, but also for setting back the Republican political agenda.

In so many words.

Wait, the Republican political agenda? Yes, according to many on the right, including David Frum, by failing to roll back Obamacare, Republicans "will have to fight inch by bloody inch for changes they could have had for the asking in 2010". Legal scholars on the left insist otherwise, noting that lawyers for the defendants were explicit in denying any interest in judicial activism and simply asked the court to respect the democratic process.

I leave this debate to others more worthy, but the idea that decisions must be popular and/or bipartisan is silly on its face. Just because something is uppopular doesn't make it "wrong" or legally incorrect. And, difficult as this is to accept in our Twitter culture, Supreme Court justices needn't be popular.

Nevertheless, the right is pushing many such non-legal arguments, including that the court should have overturned a "constitutional" legislative act. Even the Republican notables like Rand Paul advanced this argument as recently as yesterday, arguing "Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so", although the ACA has, in fact, been held constitutional.

One could easily forget that Republican notables like John Cornyn (R-TX) and Chuck Grassley (R-IA) once argued, respectively, "Unelected and serving with lifetime tenure, and substituting their view for the views of the people’s…the people and their elected representatives. That’s not the way our democracy is supposed to work" and "Judges are not policymakers. That’s what we are in the Congress of the United States. Judges are called on to decide the facts and to apply the law".

This not-so-stealth campaign to influence the Supreme Court is obnoxious, if not unethical. It is also factually challenged. Upholding a law, even a controversial law, is not be unprecedented or extraordinary, as any first-year law student could tell you.

It happens. Yet criticizing the Supreme Court is a consistent refrain from the political right, which has spent many decades attacking judges and courts as activist and partisan. In his 2008 campaign presumed Republican presidential nominee Mitt Romney asserted, "The Bill of Rights are under constant assault from activist judges". Rep. Steve King (R-IA) speaks of "the judicial activism that’s begun to break down this civilization, and this culture".

Publicly chastising the court -- and now taunting Roberts specifically -- seems to have two purposes. One is to get under Roberts' skin in hopes that he'll rule the "correct" if not necessarily "legally correct" way. Two is to lay the groundwork for declaring the court illegitimate if Roberts again upholds legislation to which the Republican Party objects.

Either way, it's politics at its filthiest.

Silver Lining or Sow's Ear

What's that word Ilya Somin likes, again... was it "overwrought"? Here's his effort to find a silver lining in what he views as a bad decision:

I do think the ruling is a cloud over the Constitution, and I do believe that Chief Justice John Roberts’ opinion allows Congress to mandate almost anything it wants, so long as the mandate is structured as a so-called “tax” similar to the individual health insurance mandate. In addition, the ruling upholds a major unconstitutional statute.

You see, the Supreme Court isn't the final arbiter of what is or is not constitutional. Those five votes mean nothing without Somin's endorsement. Seriously, I understand why people, particularly laypeople, complain that matters deemed constitutional by the Supreme Court are "unconstitutional", but last I checked Marbury v. Madison was still good law.

One thought that comes to mind is, "Be careful what you wish for, because you just might get it." One of Somin's co-bloggers was the inventor of the "activity/inactivity" distinction and it must feel pretty good to devise an entirely new legal construct to defeat a specific major statute and, in less than two years, have five justices of the Supreme Court embrace it. But this decision would have been a lot cleaner, a lot more honest, had the Court followed a traditional Commerce Clause analysis. It would have been possible to address "activity/inactivity" within that context, and to make clear to Congress that the mandate was only permissible because of the unique aspects of the health insurance market. But with four justices embracing the newly concocted distinction as a basis to overturn the entire law, rather than producing a modest decision that clarified the limits of the Commerce Clause, Roberts ended up endorsing an extraordinary expansion of the tax power of Congress.

Somin adds, "I am also far from certain that the Court will stick to Roberts’ dubious Tax Clause analysis in future, less politically charged cases." If you take Roberts' position at face value, the expansion of the tax power is far more frightening than the "activity/inactivity" distinction. If you take the position that Roberts didn't really mean it - that he was making an argument of convenience in order to save the statute, but he'll never again support such broad tax powers - you would appear to be taking the position either that Roberts contrived a justification, to be used once and never used again, to uphold an unconstitutional statute, or that he was sufficiently embarrassed by the idea of using a specious Commerce Clause analysis to overturn a statute he believed to be constitutional that he resorted to a second specious argument to save the statute. Is there a third alternative?

The "activity/inactivity" distinction is now a footnote, about as important to future litigation as Third Amendment jurisprudence.¹ Congress will simply be careful about its phrasing, and will never again pass a mandate. Yes, it will pass taxes, subsidies, or regulate "inactivity" in a manner that is virtually indistinguishable from the regulation of activity but, as they say, same as it ever was.

Somin dreams of a future in which the Supreme Court revisits the issue, "It depends on future events such as the identity of the next few Supreme Court appointments, and whether or not Obama’s health care law can be repealed or modified." Odd, isn't it, how he doesn't see that as the job of Congress?

In my opinion, there never should have been a mandate. It would have been much more simple, for example, to impose a modest tax that would be applied toward premiums or returned as a tax credit for the insured. But that sort of thing is impossible in this era of Republican demagoguery about "new taxes", so Congress adopted the Republican idea of the mandate. And the next thing you knew, Republicans were arguing that the sky was falling. Now, as it turns out, we did get a tax - because Justice Roberts says it's a tax.

One of Somin's co-bloggers, David Kopel, wrote a post titled, "Next step: Repeal the individual mandate because it is unconstitutional". Again, he means "should have been held unconstitutional", but he gets ahead of himself, dreaming of a future court packed with justices who think like Alito or Scalia.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress.

I can only hope that, in the wake of this decision, the Repubicans get over their obstructionism and participate in the creation of a superior alternative to the mandate. Unless that happens, though, I think Kopel is dreaming if he believes the health insurance industry will stand for its repeal. If it is repealed or modified, I disagree that the impact of the mandate will be significant. Mandates seem principally to be a Republican thing - other than the Republican ideas for a health insurance mandate and Social Security privatization, what else is there? If the Republicans again push Social Security privatization they'll follow Roberts' lead and say "It's a tax, not a mandate - and we're reforming the tax to make it better." Beyond that, actually including that, it's all semantics.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

Funny, isn't it, how reliance upon the democratic process is possible, and perhaps even better than a Supreme Court ruling, once you lose your case in court. But you know, maybe that should have been the Republican Party's starting point. Winning at the ballot box, not the court. Republicans used to at least pretend they preferred that approach....

Update: Via the VC:

"I think I figured out what happened. Randy Barnett made a wish on a cursed monkey’s paw that his commerce clause argument would be accepted. It explains everything, no?"

(Randy Barnett being the inventor of the "activity/inactivity" argument).
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1. Before you go looking, there isn't any.

Take That, Nancy Pelosi....

George Will believes that conservatives should view the Supreme Court's endorsement of the "activity/inactivity" distinction as a consolation prize. Maybe he's right - after all, as the issue seems to come up every two centuries or so, perhaps a couple of hundred years from now the Supreme Court will review an inartfully worded statute and find it to impose an unconstitutional mandate. And perhaps they'll again say, "But who cares, because if we call it a 'tax' it's all good".

Will takes a potshot at Nancy Pelosi:

When Rep. Nancy Pelosi (D-Calif.), asked where the Constitution authorized the mandate, exclaimed, “Are you serious? Are you serious?,” she was utterly ingenuous. People steeped in Congress’s culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle.

You know, "Ha ha ha ha, she said 'Are you serious' because she thought the mandate was permissible under the Commerce Clause. But the joke was on her because it was actually permissible under Congress's power to levy taxes. Next time she's asked that question and she again answers 'Are you serious', she'll be so embarrassed that she once gave the same answer for the wrong reason."

Brooks suggests that the proper question for the Court is "the 'legitimacy question'":

Is it proper for the federal government to do this?

As I have previously commented, I agree with that thesis - that the court should not put form ahead of substance. But unlike Will I noticed that the court answered his question in the affirmative.

You have to also love Will's argument of convenience about conservatives, democracy and patience:

Conservatives understand the patience requisite for the politics of democracy — the politics of persuasion. Elections matter most; only they can end Obamacare. But in Roberts’s decision, conservatives can see that the court has been persuaded to think more as they do about the constitutional language that has most enabled the promiscuous expansion of government.

All the right wing demagoguery against the ACA, the creation and advancement of a legal theory designed solely to target the ACA, lawsuit after lawsuit after lawsuit, trying to win through the courts a battle that they lost in the legislature... None of that was about trying to "end Obamacare" because (now that the Supreme Court has ruled) conservatives understand that "only elections" can do that.

One last question: If Will is in fact concerned about how "constitutional language" is interpreted, where can I find support for the "activity/inactivity" distinction in the actual language of the Constitution? I urge him to stop writing columns and devote every waking moment to the intense study of the Constitution. After all, it's not a long document - how long can it take?

How Justice Roberts Saved Social Security Privatization

We all know that the Republican Party loved the idea of a health insurance mandate before they learned to hate it. But it was not so long ago that a significant number of Republicans embraced another mandate: Social Security privatization. Rather than having the Social Security Administration invest in government bonds, the idea was that taxpayers would be given a list of private investment accounts and be required to put at least some of their money into those private accounts.

Before today it was difficult to see how you could reconcile the idea that a health insurance mandate was a horrendous abuse of the Commerce Clause, but forcing taxpayers to invest in private accounts remained constitutionally viable. Now, just as the penalty behind the mandate is shrugged off, "It's a tax, and the government is allowed to try to influence behavior through taxes," it seems that the same sort of distinction can be made in relation to Social Security. If there is no, um, public option - if one of the choices available is not "keep investing in government bonds" - that position may be a bit weaker; but if such an option is available, even if there is a penalty to sticking with that option (e.g., for every $1 you can put in a private account, you get only 75 cents to put into bonds), under Roberts' holding it's simply an exercise of the power of taxation.

As for justices who might try to hold Social Security privatization unconstitutional, they would have the choice of endorsing the Court's view that the "activity/inactivity" distinction is constitutionally valid, in which case Roberts would agree but assert "but this is a tax, so that's irrelevant", or they would have to work within the confines of tax law, to which Roberts could respond, "This is far less coercive than the health insurance 'tax', yet you voted to uphold that tax."

I'll grant, Social Security privatization is not imminent. G.W. pushed the idea, attempted to rebrand it when it proved unpopular, and was ultimately unable to convince a majority of the members of his own party to pass legislation. Right now it's a dream, but proponents of privatization should be grateful to Justice Roberts for keeping the dream alive.

Did the Supreme Court Make it Unconstitutional to Repeal Medicaid?

In what appears to be an unprecedented interpretation of the Spending Clause, Justice Roberts held that if the federal government makes a significant change in who is eligible to participate in a program, the states receiving funding for the original program cannot constitutionally be required to either accept the changes or end their participation - they must also be able to maintain the status quo.

Roberts introduced an analysis that derives from contract law: Medicaid is a contract between the federal government and the states and, while the federal government reserves the right to modify that contract, it is possible for a modification to be so dramatic that it transforms the program into something other than what was accepted by the states. As in Roberts' view the changes implemented by the ACA reach that point, Congress must allow states to continue the present contract, rather than forcing them to choose either to accept the expanded program or to opt out entirely.

To look at it another way, Roberts appears to be declaring that you cannot take the existing Medicaid program, dramatically change the way it works, and say it's the same program merely because you use the same name. He has a point: that would be almost as ridiculous as turning Medicare into a voucher program and pretending that you're not ending Medicare as we know it. (Cough.)

If the change to Medicaid is as drastic as Roberts suggests, you could take the position that it's not an amendment of the existing program. You could regard it as the repeal of the existing program and its replacement with a new program that simply uses the same name. Would Roberts argue that an explicit termination of Medicaid, and its explicit replacement with "Medicaid II" would be unconstitutional? If not, and Congress has the right to terminate the Medicaid program, how can the "threatened loss of over 10 percent of a State's overall budget" - the exact same loss that would result from the program's perfectly lawful repeal - prevent the federal government from asking states to accept or reject the amended program?

Activity vs. Inactivity and The Victory of Form Over Substance

One of my objections to the "activity vs. inactivity" argument, a distinction not based upon past jurisprudence or constitutional language, but instead concocted less than two years ago by a right-wing law professor specifically to target the Affordable Care Act, is that it puts form ahead of substance. In evaluating a statute proponents of that standard ask the Court to ignore both whether Congress is acting within the scope of its powers and the importance of the issue Congress is attempting to address.

Let's travel for the moment back to 1942:

"We need to regulate crop production in this time of crisis, or agricultural markets will collapse. But we have farms growing feed grain in addition to their allotted crops to feed their livestock. Let's pass a law that says if you can't feed your livestock out of the crops you're permitted to grow, you must buy your feed grain from another source."

"Horror of horrors, no! That would compel the farmer to engage in commercial activity! The next thing you know we would be forcing people to buy broccoli!"

"Let's say you're right - how do we get him to buy his feed grain from somebody else if we don't impose that requirement?"

"Simple. We simply tell him he can't grow the additional grain"

(See Wickard v Filburn). The outcome is the same, with the arguable distinction that the farmer is left with the "freedom" to either sell all of his livestock or to let his animals starve, neither of which were likely.

Now let's move back to the present:

"We want to allow universal access to health insurance, but we can't do that if we allow free riders - if people can avoid buying insurance until they're sick, insurance companies will take a loss on every customer. We need to impose a mandate. Let's require everybody to have insurance, and impose a small penalty on those who don't obey that mandate."

"Horror of horrors, no! That would compel the individual to engage in commercial activity! The next thing you know we would be forcing people to buy broccoli!"

"Let's say you're right - how do we get people to buy health insurance if we don't impose that requirement?"

"Simple. We do exactly the same thing, but call it a tax!"

The law professors who created and pushed the "activity vs. inactivity" distinction are patting themselves on the back for the court's effective 5:4 vote recognizing that distinction. But as constitutional doctrine goes, it's a one-off. To the extent that Congress is using its actual powers in a valid manner, the distinction calls into question only the language the use when drafting legislation.

"You must buy or pay a penalty...", no, that compels activity. Make it "You can't make or grow..." or "You must buy or pay a tax."

It's funny in a way that, in order to appease the factions that have created and pushed the "activity vs. inactivity" distinction. However he followed that homage by holding that the mandate was effectively a tax, and thus a noncontroversial exercise of the powers of Congress. His analysis was thus much less about whether Congress was properly exercising its powers, than it was of whether Congress used the right language when engaging in what he accepted to be a proper exercise of its power.

Roberts chose to take an expansive view of the power to tax, endorsing the idea that Congress can use a tax as a tool of coercion. That would be more significant if there were a significant chance that Roberts would take the same position in a future context and convince a majority of the court to follow his lead. I don't expect that to happen, as I believe Roberts was making an argument of convenience.

Here's the thing: If the possibility of a "broccoli" mandate is a genuine danger, if it necessitates creating a wholly new constitutional doctrine, supported neither by the text of the Constitution nor by any Supreme Court precedent, if it requires holding a valid exercise of Congressional power to be unconstitutional because some future Congress might attempt to impose an improper mandate, why wouldn't that very same slippery slope apply to a coercive tax?

If you focus throughout on the substance of the law - is this a proper exercise of Congressional power - there's no need to play that sort of game. Given the structure of the reform law, a mandate was necessary to avoid free riders. But for the newly minted "activity vs. inactivity" doctrine, this would have been a rather simple case, turning on whether Congress was exceeding the scope of its powers. Instead, as a palpably angry minority of the court wanted to overturn the entire ACA based upon the "broccoli mandate" argument, Roberts felt compelled to join the game.

In the longer term, the "activity vs. inactivity" distinction is a footnote to history. Congress will watch its wording. In one future, this entire case becomes a footnote to history. Future justices move away from the type of right-wing activism favored by those who concocted the activity-inactivity distinction, and we return to the type of Commerce Clause analysis we've seen for the past seventy years. In another world, future justices build upon other parts of the decision, refining "activity vs. inactivity" into a test that can be used on presently non-controversial issues, following Roberts' proposed lead by creating new limits on Congress's spending power, and moving us away from the legal doctrines of the New Deal era. In that future, Roberts can claim to have laid the cornerstone of the new jurisprudence. Either way, his opinion does a very good job of protecting his own reputation and eventual legacy.

Update: Richard Epstein summarizes how dramatically Roberts' position on taxation departs from precedent.