June 29, 2012

The Non-Ideological Roberts Court

In 'Don't Squat With Yer Spurs On' Texas Bix Bender wrote, "When your work speaks for itself, don't interrupt." But I'm gonna interrupt.

This morning I wrote, "So my conclusion is that Roberts just didn't want to be villified as an "unelected emperor" who "took away America's free [unearned] health care."

This afternoon Charles Krauthammer wrote,

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with ObamaCare. Hence his straining in his ObamaCare ruling to avoid a similar result a 5-4 decision split along ideological lines that might be perceived as partisan and political.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts' concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

I left the detailed explanation to the professional.

Health Care SCOTUS Posted by JohnGalt at June 29, 2012 1:01 AM

I enjoy Krauthammer's decisiveness and clarity. But he is a professional in that he is trained in Psychiatry and makes his living as a pundit.

If we're to appeal to authority, I am a lot more comfortable with legal bloggers like Glenn Reynolds, Ann Althouse, William Jacobson and the lads at PowerLine. These four sites can be mined for a diversity of opinion from "Roberts the Cunning Genius" to "Losing is losing, kids -- put the saccharine away."

I fight because it's my nature but more importantly because the Roberts Court is supremely worthy of defense. It is difficult enough to navigate the legal complexities of the decision without imagining that we have some window to the Chief Justice's soul.

The charge you and DoctorKraut make is pretty serious. The Chief Justice of the US Supreme Court chose popularity over jurisprudence. I have seen no empirical evidence nor suggestions in the Pirate -- I mean Chief -- Roberts's history or character to support it.

Posted by: jk at June 29, 2012 9:36 AM

I can see that I wasn't effusive enough in my thanks for your help in changing my perspective on Roberts' ruling. I, and I think Krauthammer, do not criticize the Chief Justice for strategically protecting the court's prestige. To the contrary, Dr. K concluded that in addition to "Commerce Clause contained and "constitutional principle of enumerated powers reaffirmed" Roberts also achieved "Supreme Court's reputation for neutrality maintained." Krauthammer said he wouldn't have ruled that way but he also didn't disparage Roberts' ruling. And neither do I, thanks to you and Lawrence Solum, as I expressed in a comment here last night.

I posted the Krauthammer piece because of its insight, and because it supported my original premise for why a conservative would uphold this ridiculous law - not for vanity, but for objectivity. Yes, I was bragging. But no "impeach Roberts" sentiment was intended.

The 24-hour old image of my premise has President Obama as Emperor Hirohito, Justice Roberts as President Franklin Roosevelt, and the newly legitimized Obamacare law as Pearl Harbor. Whether Roberts or Roosevelt intentionally allowed the slaughter is irrelevant. A rallying point is made.

To complete the picture I will recite the reflection attributed to Admiral Yamamoto: "I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve." I can confirm that my friends and family are spitting mad over this. The Liberty Movement is reanimating all across the country. Roberts has awakened it to the reality that, in my brother's words, "the Constitution is in the toilet." And I'm not inclined to talk any of them down until after November 6th.

Posted by: johngalt at June 29, 2012 12:36 PM

Althouse has another good post that speculates Roberts is, in essence saying:

"People need to stay alert and pay attention. Be skeptical of labels. Did somebody say nobody considers this a tax increase? And you believed it? You are not sophisticated enough to live in a democracy!"

Or, shorter version: Sharpen up. Bitches.

Posted by: Robert at June 29, 2012 1:11 PM

I retract. If not you and not the good Doctor, there is plenty to go around. Et tu Jonah Goldberg:

Roberts didn't hide it at all. Instead he all but declared that the Today Show and Meet the Press chatter about polarization and partisanship on the Court got to him. This is an error of Aesopian proportions. If you think you can appease the Doris Kearns Goodwin Caucus you don't understand how liberalism works. I guarantee it: The next time there's an important case before the Court, liberals and "moderates" will insist that Roberts capitulate again if he wants to keep his hard-earned reputation as a reasonable man. Indeed, all he's done is fuel the notion that a reasonable conservative is one who surrenders to liberals while offering interesting explanations for their surrender.

I cannot of course prove that this is not true. And I don't mean to be in full jump up and down mode. But I -- and Jonah -- ask our friends on the other side to discuss facts and ideas.

Posted by: jk at June 29, 2012 2:25 PM | What do you think? [4]