In March of 1937, in West Coast Hotel Co. v. Parrish erstwhile conservative Justice Owen Roberts suddenly began voting to support New Deal legislation. His change of heart was the beginning of what became known as “The switch in time that saved nine.” His sudden reversal was in direct response to FDR’s threat to pack the Court in the face of the Court’s resistance to the President’s sweeping progressive agenda. From that point forward the Constitution ceased to be a significant barrier to anything FDR wanted to do.
Fast forward 65 years and another erstwhile conservative Justice Roberts makes the same switch. For similar reasons – although President Obama has not yet called for a modern day “Court Packing”, he has frequently assailed the Court for its Citizen’s United decision, and strongly implied that the court would be guilty of judicial activism were it to overturn Obamacare, stating: “I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress.”
In the face of such attacks, Chief Justice Roberts voted to preserve the legitimacy of the court by voting to support Obamacare. To support his decision, Chief Justice Roberts chose to reached back 85 years to Blodgett v. Holden so that he can quote Justice Oliver Wendell Holmes: “the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” For it to have been so compelling for Justice Roberts to depend on it so strongly, one might expect that Justice Holmes’ edict must surely have come straight out of the Constitution, or at a minimum must have been simply “codifying” some long settled precedent reaching back to the time of the Founding Fathers. Actually, not so much. Justice Holmes was really only drawing on decisions that had been around for less than 20 years, starting with US v. Delaware & Hudson in 1909. In other words, Justice Holmes was claiming his actions were supported by settled law when in reality they were nothing of the sort.
This leads to something of a detour… The left is constantly suggesting that the country cannot possibly be governed by the words in a document that was written by a bunch of rich white guys 225 years ago. Imagine, television didn’t even exist then… The Constitution said slaves counted for only 3/5 as much as free men for taxation and representation purposes. Most people worked for themselves on farms and got their water out of wells and Virginia, the most populous state in the nation had a mere 747,000 people, 30% of whom were slaves. No way those old guys could have known anything about modern America.
The question I see in this case, however, is thus, if the 225 year old Constitution, which was ratified by each of the original 13 states, cannot be counted on to determine the limits of government power, what makes an 85 year old precedent voted on by 4 guys in 4 to 4 decision that much more compelling? Maybe because the world was so much more modern by then? Except that television still didn’t exist and most people were still living on farms, getting their water from wells and Al Gore hadn’t invented the Internet yet. Maybe precedent trumps everything... Except it doesn’t: Brown v. Board of Education overturned Plessy v. Ferguson after a mere 58 years.
At the end of the day, Charles Krauthammer’s suggestion that Justice Roberts’ decision is “one of the great constitutional finesses of all time”, the reality is that it is nothing of the sort. It is at its base judicial activism in its most despicable form. In the face of explicit and frequently and vociferously stated opinion of the President and the legislators who passed Obamacare, the law was not a tax. It passed with its advocates telling the American people stating that the power to pass it came from the Commerce Clause. Regardless, Chief Justice Roberts decided that the stated constitutional grounds upon which the law was passed were in fact unconstitutional. But in a pretzel like logic he stated that the legislation was indeed constitutional after all because Obamacare was really a tax after all.
What’s worse, while the Chief Justice had to reach back almost a century in order to find even the thinnest of grounds to find Obamacare unconstitutional, he had to compound his legislative contortion by suggesting that the mandate penalty was not a tax for the purposes of the Anti-Injunction Act – which states that a tax must be paid before it can be challenged. This was critical because none of the penalties would be due before 2014 and thus there would be no standing to sue to overturn Obamacare until then. He then immediately declared the penalty a tax for constitutionality purposes.
The Chief Justice had many options available to him in this case. He could have, as it appears he originally did, voted to declare Obamacare unconstitutional on the grounds that Congress does not have the power to compel anything like it under the Commerce Clause. He could have declared the mandate a tax and stated that there was no standing to sue until someone actually paid the tax. Each of these options would have been a straightforward constitutional approach that most citizens could have understood, even if they didn’t agree with it. Instead the Chief Justice chose to engage in the worst form of judicial activism. It wasn’t that he was supporting the legislative or executive branch when they suggest some flawed reasoning about how the Constitution gives them the power to do something. No, more disturbingly, he became an advocate for a piece of legislation and contorted its language and intent for the specific purpose of finding it Constitutional.
Those suggesting that the Chief Justice created some new Commerce Clause line in the sand across which Congress cannot venture are deluding themselves. He has just as quickly provided a roadmap for any marginally intelligent legislative aide to find a way around any such limits… “We can’t pass a law forcing them to eat broccoli or buy a planet saving electric car or limit them to one gun per household, but we can certainly tax the hell out of them for not complying.”
The first Justice Roberts’ change of heart opened up the floodgates to a tidal wave of government intervention and regulation that would not be matched until LBJ and Richard Nixon sat in the Oval Office. And we all know how that has turned out. One has to wonder what this second Justice Robert’s legacy will be... maybe it will be something like this: A judicial branch advocate for the legislative and executive branches against the Constitution and American people. That can’t turn out well. It makes me wonder if we may be finally testing Benjamin Franklin’s words about what the Constitution provided: “A republic, if you can keep it.”