Monday, July 09, 2012

Partisanship and the Justice

Was Justice Roberts’ joining with his liberal brethren in the healthcare case a decision born of political ambition or political courage? Conservative partisans have leaped upon Justice Roberts for writing the majority opinion, finding the requirement that adults either purchase or have healthcare or pay a sum to the IRS to be a constitutional tax, yet, at the same time, finding that it is not a “tax” for purposes of the Anti-Injunction Act which would have prevented any suit until a tax was paid (not until 2014).

Even if I am the only one in America who disagrees with him but still wants to defend him, I will do so gladly, because much more than many a wrong decision that a judge can make, I deplore the reflexes of partisanship shared by both sides of the ideological spectrum which are dominated by character assassination and demonization, whenever someone makes what they believe is a principled decision not in accord with their usual fellows of like mind. 

Many conservatives believe that his decision stems from ulterior motives to impress liberal journalists, or increase respect for the court, or his lack of character in seeking to be more important.  I have myself occasionally wondered if Roberts was ever discouraged that his court was so dominated by Justice Kennedy’s swing vote and if he might desire to somehow make himself more relevant. But Roberts, whose intelligence no one doubts, had to know that his decision would make him no one’s hero, but a large target for conservative partisans. He’s just not dumb enough to think that they would love him for his independence. Sure enough, he’s been attacked relentlessly. Just as examples, Michael Gerson wrote that his decision “was an act of judicial arrogance.” Pat Buchanan wrote that he “does not want Anthony Kennedy, the swing justice, to be making history, while he is seen as a predictable conservative vote.” Byron York wrote that he “wanted to uphold Obamacare, even if it meant venturing deep into the forbidden land of the sophists.” There are many more.

Personally, I admire it when a politician or a judge makes a decision that goes against his or her own political side, even if I think they are mistaken. Going against their own side takes courage because they know their friends are going to be ever so mad at them; madder than they'd even be at their actual political opponents. And, it may be true that Justice Roberts changed his mind while considering the case, as reported by a CBS reporter (on the word of two witnesses from within the court itself - justices?). But, a justice changing their mind is hardly rare. Besides, when has anyone ever cared that someone else changes their mind when they now are in agreement with them?

For many partisans on the left or right (and that includes many if not most of my good friends and family) not “going against the family” seems more important than most anything else. Almost anytime one of their clan goes along with the “enemy,” they attribute it to some character flaw or nefarious desire. Liberals did it with Lieberman, conservatives with McCain, both of whom acted out of principle. Both sides have alternatively raged against Specter, who completely changed sides twice for political advantage. I can't say I admire him for his purely political act, but I did enjoy it, as the harm that partisan politicians do is far worse than anyone who merely changes sides. If you are partisan, and reading this, you probably disagree. You think it is only the other guys who do that and that your team was genuinely stabbed in the back. In fact, you might even disagree that you are partisan - you are just right about the other side being evil. But, that is why you are partisan. Your glasses are either red or blue colored.

The idea that the “mandate” is constitutional under congress’s taxing power is hardly revolutionary, even if wrong. The court itself went so far as to hire an attorney to argue that the mandate was a tax as both sides had argued it wasn’t for their own litigation purposes (although the government said it both was and wasn’t a tax, depending on the issue). In fact, the Fourth Circuit had already ruled that the Anti-Injunction Act applied. Justice Roberts reasoned that since both the Affordable Care Act and the Anti-Injunction Act are creatures of congress, it can determine how the two interact, and that while it had the power to make this law under its taxing power, it did not intend the Anti-Injunction Act to apply when it did not call the mandate a “tax.” Justice Scalia’s dissent called this “judicial wizardry,” and I somewhat agree with him, but stop short of his use of “sophistry,” which implies intent to deceive.

Justice Roberts may have been wrong in his decision, but I trust that he meant to be right.  I seriously doubt hes will turn out to be the third coming of Justices Blackman or Souter, as has been suggested, and regularly join his colleagues on the left in hotly disputed cases. His old boss, the very conservative Chief Justice Rehnquist once wrote the opinion in a case that upheld Miranda, an interpretation that the right hates. He did so mostly because it had been around for a while and everyone, including the police, were used to it. Not much of a constitutional argument. At that point though, his credentials were so thoroughly vetted, no one bothered to suggest that he was not conservative enough. This decision probably came to early in Justice Roberts' career for that to happen. Ironically, though Justice Kennedy more often sides with the left, the right is so used to it, they don't often react with this kind of vindicativeness against him. Partisans are rarely fair. But, until now, Roberts has been seen as extremely conservative by the left and I expect he will again.

I did not agree with his decision and I don't like the Affordable Care Act for many reasons (as much because I believe it will have the opposite affect on healthcare costs than which are intended than for its unconstitutionality). It is hard for us to acknowledge, at least not without an effort, that someone might disagree with us for rational reasons. But after a little reflection, I have no problem believing he thought he was right. We might all reflect on times in our own lives we have been accused of making decisions for reasons other than what we claim, almost always by those who don’t like our decision. I don’t like it much and I doubt anyone does. If there is any lack of integrity, it is more likely to be found on the part of those who attack his character simply because they disagree with him on a case that is important to them, regardless of whether they are on the right or the left. Character assassination is the hallmark of partisanship. In the long run, that political reflex is more dangerous to us than a bad decision.

In my opinion, you could argue this was a tax or a penalty with some justification. But, judges have to make judgments and usually don't have the luxury of saying, I can't tell. If this was a tax, though, it was direct tax (which Justice Roberts denied for what I think faulty reasons). And, as such, it needs to be apportioned by state pursuant to Art. 1, Sec. 3 of the Constitution. It isn't and is therefore unconstitutional.  I agree with Justice Roberts and the other members of the usual conservative majority that the mandate to purchase insurance is too far to justify under even the expanded interpretation of the Commerce Clause, past even that of the controversial Wickard v. Filburn case. I would agree with Justice Thomas that the “affects interstate commerce” interpretation of the Commerce Clause should be thrown out, but we have a system of precedent and they are not likely to ever do that short of a Constitutional Convention that no one wants to see (if the other side gets to propose changes too).


  1. You know sometimes in your attacks on partisanship you make it sound as though you are are the only non-partisan moderate in the world. "The whole world is crazy but you and me and I'm beginnning to have my doubts about you" kind of thing. Not all people with opinions are blindly partisan. I don't know enough about an 1,100 page law to have a stong opinion. And it is a shame that so many have opinions without having facts to support them. It's also a shame that the mighty Casey struck out, the Titanic sank, and many people like opera. But as Little Annie says, "the sun will come out tomorrow..."

  2. No, I don't think that at all. I know lots of non-partisans, but partisans may be a majority, and I do know a lot, although their are different levels. Even if they are not a majority, their noise level dominates the media and most issues. I am virulently anti-partisan. Again, not anti-ideology, but anti-partisan. In all the articles I have read about Roberts, I have not read one single description or defense of why he decided the way he did - not one. That says something. This was originally supposed to be a 700 word newspaper article, but I was too busy packing and never submitted it. So, now you get the pleasure of reading it as an exclusive to my blog, you lucky dog. But, I think you have inspired me to write how to tell the difference between an ideologue and a partisan. The world will thank you.


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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .