Power of Story Send a Tweet        
OpEdNews Op Eds

Judicial Judo

By       Message John Peeler       (Page 1 of 2 pages)     Permalink

Related Topic(s): ; ; ; ; ; ; , Add Tags  Add to My Group(s)

View Ratings | Rate It

opednews.com Headlined to H3 7/1/12

Author 79835
- Advertisement -

Judicial Judo: The Chief Justice and Obamacare

 

John Peeler

 

- Advertisement -

Nobody expected it.   Most observers thought that the conservative majority of the Supreme Court would at least throw out the mandate for everyone to have health insurance.  And if even that provision survived, it would have to be Justice Kennedy providing the deciding fifth vote, as he has so many times since the retirement of John Paul Stevens.

 

Instead, what we got was Chief Justice Roberts going with the liberal bloc for the first time in a 5-4 vote, while Kennedy wrote the dissent for the four conservatives.   Moreover, Roberts constructed his majority opinion on unexpected grounds.  While rejecting the Obama administration's primary argument that the individual mandate was a legitimate exercise of the constitutional power to regulate interstate commerce, he refused to go along with the conservative in concluding that the whole law should be thrown out.

- Advertisement -

 

Instead, he took up the backup argument that the mandate could also be construed as a tax which lies within the acknowledged authority of Congress to impose taxes.  On this basis he affirmed that the whole law is constitutional, while explicitly refraining from any judgment about its merits as public policy (a question that he referred to the elected representatives of the people, that is, Congress).

 

So, what gives?  I believe that what we've seen is a kind of "judicial judo," where the force of the adversary is used to defeat that adversary.  Whether it will work remains to be seen.

 

Had Roberts done the predictable and sided with the conservatives, the law would have gone down.  That is probably the outcome he would have preferred.  But it would have further confirmed that the Court is divided into polarized, increasingly partisan liberal and conservative blocs.  Ever since Bush v. Gore in 2000, many on the left have seen the Court's majority as essentially another arm of the Republican Right.  By switching sides, Roberts undermines that narrative, and maintains the precarious legitimacy of the Court as a politically independent arbiter.  As Chief Justice, it is his unique responsibility to protect that institutional legitimacy, at a time when excessive partisanship has gravely undermined that of Congress.

- Advertisement -

 

Moreover, Roberts' opinion serves conservative ends in the long run precisely by blocking the conservatives in the immediate case.  For he affirms Obamacare's constitutionality on tax grounds that do not represent an expansion of federal prerogatives, while rejecting the extension of the Commerce clause to justify the individual mandate.  He thus adopts a position of "judicial restraint" in refusing to countenance a novel use of the Commerce clause, by allowing a law passed by Congress to take effect, and by explicitly refraining from any judgment of its merits as policy.  But he approves the law on the narrowest possible grounds, making more difficult any future expansion of federal authority.

 

Next Page  1  |  2

 

- Advertisement -

View Ratings | Rate It

opednews.com

Retired professor of political science. Pennsylvania resident.

Share on Google Plus Submit to Twitter Add this Page to Facebook! Share on LinkedIn Pin It! Add this Page to Fark! Submit to Reddit Submit to Stumble Upon Share Author on Social Media   Go To Commenting

The views expressed herein are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.

Writers Guidelines

Contact AuthorContact Author Contact EditorContact Editor Author PageView Authors' Articles
- Advertisement -

Most Popular Articles by this Author:     (View All Most Popular Articles by this Author)

Judicial Judo

Obama, Putin, and Assad: It Just Gets Weirder