Thursday, June 28, 2012

John Roberts, Traitor to the Conservative Cause? Nope

Et tu, John Roberts? I can just hear the charges of "traitor" being flung at Chief Justice John Roberts by Republican lawmakers and conservative activists. They should hold their fire.
Roberts didn't "join the left," as some bloggers are writing. Nor did he turn his back on the strict-construction crowd, or even wander far from bedrock conservative principles.

Roberts, instead, has lined up with conservatives who are faithful to traditional interpretations of the Constitution. And that means deferring to Congress and the executive branch, even if the laws they've enacted circumscribe some individual freedoms. The right of elected leaders to pass the Affordable Care Act (aka Obamacare) falls well within the existing boundaries of constitutional power, Roberts essentially concluded. And for those who don't like the result, relief should be sought at the polls, not in the courts.
The evidence for how Roberts would rule was hiding in plain sight. He has never been in the libertarian wing of conservatism that is personified in today's Tea Party movement -- favoring limited government and states' rights and holding the belief that personal liberty trumps everything else. Instead, he likely drew inspiration from the opinions of a handful of prominent conservative legal scholars and lower court judges. Two are worth mentioning:
In November, the U.S. Court of Appeals for the D.C. Circuit upheld the ACA in a 2-1 decision written by Judge Laurence Silberman, a card-carrying member of the GOP's conservative wing. He wrote that the health reform law “is an encroachment of individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”
Silberman also notably argued that freedom from regulation must give way to “the imperative that Congress be free to forge national solutions to national problems.” Interestingly, Silberman didn't rest his legal argument on the powers granted Congress under the Commerce Clause -- just as Roberts didn't lean on the Commerce Clause in his majority opinion today. Silberman essentially provided Roberts a path to upholding Obama's signature legislative achievement without further expanding, or even endorsing past expansions, of the Commerce Clause, which liberals have leaned on for decades to adopt the 1964 Civil Rights Act and numerous other laws.
Another likely Roberts muse is Henry Paul Monaghan, the Harlan Fiske Stone professor of constitutional law at Columbia Law School. Among his conservative bona fides: He testified in favor of Robert Bork during his aborted Supreme Court confirmation hearings in 1986. But Monaghan is somewhat of a stickler when it comes to upholding precedent, and it was his opinion that an analysis of settled case law meant that the individual mandate is constitutional. One such settled principle is Congress's right to regulate commerce, whether it's activity (buying insurance) or inactivity (not buying it).
In the end, Roberts concluded that any ruling against the health-care law would have been the very kind of judicial activism that conservatives decry. To Roberts, the solution lies with politicians and voters, not his court.

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