October 01, 2012

ObamaCare vs. SCOTUS Legitimacy

At the onset of a new Supreme Court term a month before a critical election, many have been looking back at Chief Justice Roberts’ ObamaCare opinion that resulted in widespread shock at the end of the last term. Of particular significance was that this opinion came in the wake of vicious personal attacks by de facto parties to the case, especially President Obama and Senate Judiciary Committee Chairman Leahy. They charged that a ruling against them would be a severe blow to the legitimacy of the Court. Numerous accounts have suggested that the chief justice reversed himself for fear of lending validity to that charge. 

I have written an article here arguing that, if protecting legitimacy was his goal, Roberts sadly produced the opposite result. He has raised questions concerning the utility of elections, what remains of our actual Constitution, the rule of law, and public acceptance of judicial review.

As protested by the dissenters, his opinion was an exercise in utter sophistry. I analyze six fast shuffles that Roberts and his apologists had to engage in to defend this result. For example, calling the same words a tax and not a tax, declaring that it was constitutional to compel indirectly what was unconstitutional to compel straightforwardly, and recognizing limits on federal power while at the same time giving the Court’s imprimatur to unlimited presidential and congressional power. I also discuss the fast shuffles involved in lecturing the voters that their political choices were responsible for ObamaCare and, hence, it was up to them to fix it; as well as disregard for completely unambiguous legislative history by justices who had relied upon such history in the past when far less clear. Finally, I argue that Roberts’ apologists, trying to absolve him of the charge of acting as a politician rather than a judge, engage in sophistry by applying the wrong standard of evaluation, rather than the appearance standard applied to assessing judicial impartiality.

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