July 02, 2012

Matthew J. Franck Is Out of Line

             The following comment is completely mine. Curt Levey did not ask me to write it, see it in advance or give his approval. I am sure he does not need me to speak for him. But, as one of many shocked by Chief Justice Roberts, I strongly believe the following should be said.

            John Roberts apologist Matthew J. Franck has a remarkable attack on Curt Levey: No One Ever Turns On You Quite Like Your Friends. This suggests that Levey turned on Roberts rather than Roberts turning on  his own friends, those who enthusiastically and actively supported his nomination – figuratively stabbing them in the back and literally leaving them in shock.
Levey’s comment on the ObamaCare decision stated, in part: “Obama and company’s attempt to cow the Supreme Court succeeded … the pressure apparently got to Roberts,” who, many have argued, changed his vote as a result of the pressure. Franck labels this the “nadir for commentary on Roberts.” Franck prefers to take seriously what he calls the “bravo” possibility that Roberts acted out of principle.
At least these points should be considered in response to Franck. As even he bluntly makes clear, there are only two “possibilities”: Roberts is a dishonest and corrupt coward, or he courageously and sincerely acted on principle.  To accept the latter, this brilliant lawyer had to actually believe:
·        Congress improperly but properly imposed the individual mandate   it had no power to enact the mandate per se, but it properly exercised its tax power as a bludgeon to compel acceptance of the mandate anyway, even though it explicitly denied doing so.
·        The Act was simultaneously not a tax and a tax – as stated by the dissent, “the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists. 
·        It is not the Court’s “job to protect the people from the consequences of their political choices,” except of course when it is the Court’s job, which is not to “abdicat[e] in matters of law.”
These points reveal precisely Roberts’ penchant for the have-it-both-ways sloganeering characteristic of politicians responding to political pressures. As to the third point, can Roberts have forgotten by Thursday that, on Monday, the court (1) invalidated the sentencing policy choices of 29 jurisdictions for the benefit of convicted murderers, while simultaneously sentencing innocent, law-abiding citizens to death; and (2) as characterized by Justice Scalia’s dissent, substantially invalidated Arizona’s attempt to protect its “citizens under siege,” by holding the state “contradicts federal law by enforcing” federal law?
Of course, Roberts knows as well as anyone that the Court, with far less justification than in the ObamaCare case and often with no justification at all other than the “raw judicial power” of five votes, has invalidated close to 200 federal laws and hundreds of state laws. Earlier I wrote about how the court, resorting to interpretation abuse, has rewritten the Constitution. Roberts’ opinion will likely go down as a classic example of such abuse, especially given the historic stakes of the case. 
One final point. For decades, double-standard leftist partisans have wielded the weapon of “appearance of impropriety” against their opponents who have done nothing wrong. In the case of judges, this standard is actually codified in 28 U.S.C. §455(a). Although there is not – yet – 100% proof that Roberts acted improperly, the evidence continues to mount. At a minimum, an abundance of evidence already indicates that the appearance of impropriety standard applies to Roberts, whose “impartiality might reasonably be questioned.”


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