Is John Roberts the Smartest Guy in the Room?

(Terry apologizes for missing last week’s blog. He was attending to a family emergency. All is well now, he thinks.)

The Supreme Court is a venerable institution. Many years ago, I had the pleasure of hearing a case argued there. The lawyers in the case, all experienced attorneys, had shaky knees and quivering voices as they tried to reason their way past these intellectual giants. Every attempt at obfuscating was met with pointed questions designed to find every crack in every argument, no matter which side. I was inspired.

Naturally, I don’t always agree with Supreme Court decisions. Sometimes, they get things horribly wrong, as in their Kelo v. City of New London decision, which approved of the use of eminent domain to forcibly transfer private property to another private owner for the purposes of “economic development.” Sometimes they get things wonderfully right, as in Citizens United vs. Federal Election Commission, in which they slapped down an attempt to limit free speech by corporations and unions.

Conservatives hate the Court–when it suits their purposes. School prayer decisions forced them to confront the fact that public schools are not the place to evangelize. Liberals hate the Court–again when it suits their purposes–as was the case when their airy fantasies of controlling speech for the good of the masses were fanned away.

When we citizens get irked at the Court, it is good to remember why it exists. The Founders were deeply skeptical and wary of government–even representative government. They knew that power seated in any particular branch was dangerous. Legislative bodies like Congress are wont to impose all manner of laws on the electorate. Some stem from outright lust for money and power, as when bribes and near-bribes are exchanged for favors. Some stem from a inclination to serve as a surrogate parent, as when soft drink sizes are regulated. Both are despicable.

Which brings us to the Obamacare decision. When I first heard that it was found constitutional, I convulsed. I would have bet good money that the individual mandate would fall on the basis of the Commerce Clause. Then I remembered something I read when the arguments were first heard. John Roberts, someone opined, might join the majority so he could write the opinion. And by golly, this is just what he did.

For the record, I think Obamacare stinks on ice. It is an abomination that will result in fewer choices, higher prices, and a significant reduction in our liberties. The key, though, lies in how Roberts and the majority upheld it. They noted that under the Commerce Clause construction, the law would be unconstitutional. It is constitutional only because of the way the “penalty” for not purchasing health insurance is administered–through the IRS. Refuse to buy insurance and the IRS will simply take your money, thus making it a tax in the Court’s view.

As the Chief Justice was quoted as saying this morning, it is not the Supreme Court’s job to protect citizens from their bad political choices. Now the ball is in our (citizens’) court. If we have any guts left, we will throw out the scum that passed the bill in the first place and replace them with better scum, or at least scum that recognize there are just some places government should not go.

In the end, John Roberts may come to be recognized as the only person standing between us and a limitless interpretation of the Commerce Clause. Liberals got what they wanted, but when they come floating back down to Earth, they may realize they got smacked stupid on the way up.

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About Terry Noel

I am an Associate Professor of Management and Quantitative Methods at Illinois State University. My specialty is entrepreneurship.
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7 Responses to Is John Roberts the Smartest Guy in the Room?

  1. Dustin says:

    Does this not open the door for more silly “taxes” that are just power grabs by the gov’t?

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  2. Dick Richards says:

    So now it is clear. The government cannot force us to buy Justice Scalia’s broccoli, but it can tax us for not buying it. Then, throw us in jail for refusing to pay that tax.

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  3. Mark J says:

    This may be hopeful looking through rose colored glasses on what Roberts has done to this country for what is a decision not based on following law. The court overstepped its bounds by making Obamacare valid based upon tax. It wasn’t their place to change the case basic from a commerce clause ruling to making it valid as a tax. That wasn’t the case before them. If Roberts had voted with the other 4 conservative justcies he still could have written the opinion and made the same arguments sealing the fate of similiar future legislation.

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    • Terry Noel says:

      Mark,

      I agree. However, it makes me wonder what JR was thinking when he decided to write the opinion the way he did. Surely he had some rationale. Perhaps he thought that it was important to state that Congress cannot dress up a tax as something else and foist it upon us. Or, perhaps he was weaning the American people off the notion that the courts should step in to correct disasters that they allowed to happen in the first place.

      All things considered, I am decidedly unhappy about the outcome, but not livid. Having the SC state forthrightly that the Commerce Clause cannot be interpreted to force people to engage in private commerce was a gift, though it came packaged in a box of ****.

      Terry

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  4. David Marx says:

    As a conservative, I only ask the Court to make their decisions within the confines of the Constitution and original intent. I would also accept decisions based on precedents in which the right decision was made. If the Court does those things, I cannot say that they didn’t do their job.

    Roberts opinion is one of the most convoluted opinion pieces I’ve read. It’s a twisted. No matter how people try to find a way to justify what Roberts did, there is no excuse for what he did. He could have killed the whole thing by siding with those in the minority, who stood on solid Constitutional ground in their opinion. Instead, precedent has been set that is damaging to the law (in general) to save a law that will be harmful for all Americans.

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  5. David Marx says:

    For some nice, point by point analysis on the Roberts’ decision, see this article…
    http://cfif.org/v/index.php/commentary/42-constitution-and-legal/1483-john-roberts-travesty-point-by-point

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