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Why Roberts Was Right
He exercised discretion where it was needed.


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However painful it was to read the headline “Obamacare Stands” on Drudge yesterday, Chief Justice Roberts made the right call.

Roberts’s opinion, far from being an act of cowardice or betrayal, is true to the tradition of the early Republic, when the Supreme Court exercised the power of judicial review to strike down federal statutes only very rarely.

Before 1803, federal judges, acting on Alexander Hamilton’s arguments in Federalist 78 and Sir Edward Coke’s ruling in Bonham’s Case, flirted with the idea of judicial review of federal laws. But it was only in 1803 that the doctrine came into its own, when the Supreme Court struck down a clause in the Judiciary Act of 1789 because it was, in Chief Justice Marshall’s words, “in opposition to the Constitution.”

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The case, of course, was Marbury v. Madison. But the justices were hardly intoxicated by their newly asserted power. The Court didn’t invalidate another federal law again until 1857 — in Dred Scott v. Sandford, not exactly the crown jewel of American jurisprudence.

Judicial review, like any other form of authority, is subject to the Actonian principle that power corrupts.

Learned Hand deplored the way this particular power was corrupting the integrity of the Supreme Court, and in his 1958 Oliver Wendell Holmes Lectures at Harvard he warned that the Court was becoming a “third legislative chamber.”

True, the dissenters in the Obamacare case had compelling arguments for invalidating the statute in question, as the Warren and Brennan Court justices too rarely did in their efforts to remake the Constitution in their own image. The dissenters did not resort, as Justice Douglas in Griswold v. Connecticut did, to a make-believe jurisprudence of “penumbras” and “emanations” to make their case, and Roberts would certainly have been within his rights had he joined them.

But he was wiser, in this instance, to give the legislature the benefit of the doubt. His wisdom and restraint contrast starkly with the folly of President Obama and former speaker Pelosi. They were within their rights when they pushed through so consequential a law on a nakedly partisan basis. But they were not wise to have done so.

In giving the elected lawmakers the benefit of the doubt, Roberts didn’t give them carte blanche, and he took the managers of the welfare state to task when he mocked the idea that the Constitution’s Commerce Clause is a kind of Fill-in-the-Blank Tsarist Ukase that lets the federal government do whatever it likes.

But rather than give President Obama an easy target at which to strike in an election year, he said yes, Washington can impose Obamacare on the nation, provided that the nation understands that as far as the Constitution is concerned Obamacare is a gigantic tax.

The very thing the president said it wasn’t.

In making the judgment that he did, Chief Justice Roberts deprived American advocates of a European-style social state of one of their most precious conceits, that right-leaning justices on the Court will stop at nothing to prevent the country’s health-care system from rising to the level of, say, Cuba’s, a system which, as Hugo Chávez can testify, is smokin’.

There is a larger point. If the only way Americans can defend their liberties is to hide behind the verbiage of a Supreme Court opinion, it’s already too late for freedom here.

My guess is that the chief justice doesn’t think it’s too late. He knows, as we all do, that the remedy — a remedy far more potent than any judicial decision — is at hand.

If conservatives in an election year like this one can’t win the battle of the ballot box, no Supreme Court judgment can save them.

Michael Knox Beran is a contributing editor of City Journal and the author, most recently, of Pathology of the Elites.



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