Today's Supreme Court is often referred to as Anthony Kennedy's Court. Although Kennedy is the swing justice who usually casts the deciding vote in close cases, the landmark ruling this week in the healthcare cases clearly marks the maturation of the "Roberts Court."
Chief Justice John Roberts was the surprising swing vote in today's Obamacare decision. Although he agreed with the four conservative justices, including Kennedy, that the individual mandate was not a regulation of interstate commerce, he voted with the Court's moderates to hold that it was justified as a tax. Because people who don't obtain insurance pay a tax to the IRS, the mandate was within Congress's power to raise taxes for the general welfare. As a result, the Affordable Care Act was upheld.
With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there.
Roberts' decision was consistent with his confirmation hearings pledge to respect the co-equal branches of government, push for consensus, and reach narrow rulings designed to build broad coalitions on the Court. He promised to respect precedent. His jurisprudence, he said, would be marked by "modesty and humility" and protection of the precious institutional legitimacy of the Court.
Today, the institutional legitimacy of the Court was buttressed. President Obama wasn't the only winner at the Supreme Court today. So was the Supreme Court itself.
Roberts' humble move was a surprise only because his oft-stated concern for protecting the Court by avoiding bold rulings doesn't always hold. Despite today's decision, the Roberts Court is hardly conservative in the sense of cautious or avoiding bold rulings. In contrast to an older conservatism that emphasized judicial restraint, the Roberts Court is not hesitant to forcefully asserts its power.
Since John Roberts became Chief Justice in 2005, the Court has issued one landmark ruling after another. The Roberts Court gave us Citizens United, which struck down longstanding limits on corporate political spending. This Court also allowed new restrictions on women's right to choose; became the first Supreme Court in American history to strike down a gun control law as a violation of the Second Amendment; effectively outlawed voluntary efforts by public schools to racially integrate; and curtailed the reach of environmental protections.
In many of these decisions, the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old. Prior to Citizens United, the Supreme Court had explicitly held in two cases that corporate political expenditures could be limited -- the most recent of which was handed down in 2003. Six years before the Roberts Court upheld the federal ban on "partial birth" abortion, the Rehnquist Court, which wasn't known for its liberal leanings, had overturned a nearly identical law.
Of course, the Roberts Court isn't the first to overturn precedents and issue major rulings. Yet this Court has been uniquely willing to do so by sharply divided 5-4 majorities. The Warren Court's Brown decision was famously 9-0. New York Times v. Sullivan, which freed up the media to discuss public figures, was decided by the same margin. Gideon v. Wainwright, on the constitutional right to counsel, and Loving v. Virginia, invaliding bans on interracial marriage, were also unanimous. Even Roe v. Wade was decided by an overwhelming 7-2 vote.
Perhaps as a result of the Roberts' Court's controversial 5-4 rulings, public opinion of the Court is at an historic low. Even after controversial rulings like Roe and Bush v. Gore, the Court still maintained high levels of public respect. But unlike the Warren Court, whose landmark rulings, though classified as "liberal," didn't match up with the platform of the Democratic Party -- southern Democrats were the biggest opponents of Brown -- its hard to ignore the usual fit between the Roberts Court's rulings and the Republican agenda.
Maybe that's why recent polls show the Court's public approval rating has dropped from 80 percent in the 1990s to only 44 percent today. Three in four Americans now believe the justices' votes are based on politics. Nothing could be worse for the Court's institutional legitimacy.
Roberts may have voted to save healthcare because he wants to preserve the Court's capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America's commitment to civil rights for over 40 years.
The Roberts Court has only just begun.
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Robert's court has unabashedly overturned precedent after precedent - it really doesn't get anymore activist than this court.
Thomas & Scalia both spear heading and giddy like school girls of their new found power under Roberts.
The court has no place for political ideologues, all should be equal before the law, but as this court has demonstrated time and time again, if it's liberal or even liberal leaning, this court will rubber stamp over-rule before hearings are even scheduled.
It appears that if the legitimacy of the court were not on the line, Roberts would've over-turned health care reform.
So even though the ruling preserved the law, full disclosure siding with what I hoped it would, the rationale for the preservation is disheartening.
It in fact further de-legitimizes the court, because this means the justices are not going off of any solid legal principle or logic, but simply ruling based on how they want things to be - which is disheartening.
In fact, thinking a mere linear spectrum governs the entire world of political polarization is foolish too. Any thinking which limits itself to two dimensions is flawed if it is designed to capture reality.
I can only hope that he has found a conscience as he watches a third of the nations "Damage Readout" flashing red and most flashiing yellow. I do hope that maybe he would be like my neighbor who is a great man change conscience when his grandson had a brush with the law and learned that even good people can be caught up in bad mistakes.
I can only hope... but my logical side yells at me telling me I am just being stupid because the whole thing seems like a scripted play to begin with.
Maybe I just need more coffee...
First, the ruling had to classify the mandate as a penalty for the Anti-Injunction Act (otherwise the case would have been deferred to 2014) but then it reversed itself and called it a tax when evaluating its constitutionality. Roberts did this jujitsu by claiming the standards for constitutionality and a statute (AIA) are different. That’s possible, but to the average citizen it sure seems like he chose to call it a penalty or tax only when it suited him-hardly furthering the legitimacy of the Court.
Second, up until Thursday there were only 3 types of taxes permitted by the Constitution-direct, indirect(excise) and income taxes. Roberts spends a mere page concluding, with little basis, that it’s not a direct tax (if it were it would have failed for lack of apportionment) because it’s not a capitation like we’ve seen before (it doesn’t apply to everyone). This is a thin justification, but even so, then what type of tax is it? Its unlikely an income or excise tax. So does this mean Roberts made up a 4th type of tax. If so he never explains it, hardly furthering the Court’s legitimacy
Second, it's unlikely (although based on Robert's convoluted reasoning anything is possible) that it would be an income tax. An income tax is generally one that's is triggered upon the earning of income or realizing some gain. See Commisioner v. Glenshaw Glass Co. Here the "tax" is triggered upon mearly existing, although there is a waiver for people making below certain incomes.
Third and most importantly I was taking issue with the claim that the decision somehow helped the "legitimacy" of the Court. My point was that the reasoning was so convoluted that anyone looking at the reasoning would conclude that Roberts didn't make a conclusion based on his honest interpretation of the law but rather started with a predetermined conclusion and tried to work backwards to make his conclusion fit it. If so that doesn't help the legitimacy of the Court. I cited two examples to show my point (there are many others). Even if it is determined to be a income tax, Roberts never ruled as such and he never even addressed the issue-its as if it didn't exist. Yet these issues were raised in the briefs. It is hard to conclude the decision furthers the legitimacy of the Court when it simply ignores major issues raised by the case and the parties.
I'll believe it when I see it
People want the Supreme Court to be part of the common democracy. They think this is the purpose of the court. This is wrong, evil and counter to the purpose of the court.
The Supreme Court's only purpose is to protect the constitution. What people think, want or whatever does not count. When it starts to count, the United States has descended into anarchy.
If the Court was doing its job, it would have voted 9-0 to invalidate all parts of the ACA.
Politics is when the court votes based upon what the people think. The people do not count.
The facts no one wants to read.
In a government of, by and for the people, stating the people do not count is a slippery slope. The people is the Constitution's raison d'etre.
People do not count. They want to think they do. The Constitution is to protect the people from themselves. But the ignorant people are whiny brats. People are no more than stupid sheep.
The ruling is another step in the road to socialism. No great nation has had socialism as a form of government.
Censorship is evil.