"It profits me but little that a vigilant authority always protects the tranquillity of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life."

--Alexis de Tocqueville, Democracy in America

Thursday, June 28, 2012

Understanding the Roberts Decision

It will be known as the Roberts decision, because the Chief Justice both authored it and provided the swing vote, much to the surprise of most commentators, including me.   I think Roberts' decision can best be understood as a measure of his deep and long-term conservatism in that he views the prestige of the Court and the Constitution as a long-term bulwark against tyranny, and the Obamacare decision, while enshrining bad law in the short-term, preserves and enhances that prestige for the future.   By maintaining a clear divide between what are questions of law for  the Court and what are questions of policy for the legislature, he sets himself up to make perhaps tougher decisions down the road; he will be insulated to a degree from future criticism because, in this case, he took the unpopular position.

I also think that on some level he believes that the American people, duped in 2008 by Obama, will correct their mistake via the political process, and that a political reversal of course in 2012 and a legislative repeal of Obamacare in 2013 is the way the system is supposed to work, rather than having 9 unelected judges overturn a complex piece of legislation.  

Here are some key passages:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions. 
Our permissive reading of these powers is explained inpart by a general reticence to invalidate the acts of theNation’s elected leaders. "Proper respect for a co-ordinate branch of the government" requires that we strike down an Act of Congress only if "the lack of constitutional authority to pass [the] act in question is clearly demonstrated." United States v. Harris, 106 U. S. 629, 635 (1883).Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcingthose limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.

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