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Bench Memos

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A Response to David Brooks



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David Brooks:

Hostility toward the Supreme Court has risen sharply since Chief Justice John Roberts Jr. upheld the Obama health care law. People are apparently angry that the court didn’t rid them of a law they detest. But that’s silly. If Americans want to replace this thing, they should do it themselves.

I can’t speak for all of the chief justice’s critics, but I can assure Brooks that my own frustration is about a lot more than the majority’s failure to rid us of a bad law. It is about the majority’s failure to rid us of an unconstitutional law. Yes, our legislators are the first line of defense in that regard and should both refuse to vote for and commit to repeal such unprecedented and unconstitutional power-grabs.

But, when Congress fails in its own sworn duty to uphold the Constitution and the president similarly signs a law in complete disregard for its impact on the constitutional balance of power, the Court is the final arbiter of constitutionality. Obamacare may be bad policy, it may be unpopular. Those are faults that Congress must remedy. But if it is unconstitutional, we can correctly expect the Supreme Court to strike it down.

As the dissenting justices explained, the law had to be rewritten to be saved. And the rewriting process was led not by our elected representatives, but by the chief Justice.

These two facts lead many conservatives to fear that they were deeply mistaken about the chief justice and what his appointment was supposed to signify, not as a matter of ensuring particular policy outcomes, but as a matter of returning to a principled legal understanding of the Constitution.

For decades, we have watched as Republican-appointed judges “grew” on the bench, a process that involves putting any number of considerations ahead of the text and original public meaning of the Constitution. In simple terms, the practical impact has been the invention of rights that are not in the Constitution and the abdication of protections that are explicit in its text and structure.

The chief promised he would behave like an umpire, calling balls and strikes, and, as simple as that analogy was, it was correctly understood as a commitment to rule on the basis of law and not other considerations. And his youth and extraordinary skill meant that he would be a force on the bench for decades to come, leading the Supreme Court and the federal judiciary to its proper role.

So the chief’s performance in the Obamacare decision is a deep disappointment to conservatives for two interconnected reasons. 

First, and most obviously: He was unwilling to faithfully apply the Constitution in one of the most important cases, if not the most important case, he will ever decide. Yes, I know, he took the conservative/Burkean step of applying the doctrine of constitutional avoidance, and found what he believed to be a “fairly possible” solution that would avoid striking a major federal statute. But here is a question for my friends who make that argument: Would you have done the same or would you have sided with the dissenting justices? Why? The bottom line is that he took a position that his conservative colleagues, three of whom consider themselves originalists, refused to join even in part.    

Second, his unwillingness to side with the dissenting justices signals that, even on their best days in the judicial selection arena, conservatives might still be failing. The counter-argument is that the warning signs were there when he was nominated, but most conservatives chose to ignore them. And unlike Justice Alito — who had a demonstrable record of faithfully applying the Constitution and a temperamental willingness to join organizations like The Federalist Society — the chief was known for playing his cards close to the vest. Whatever the case, many conservatives now feel as though they will have to hope for yet another Republican president to get it right, knowing that the margin for error is getting smaller and smaller.   



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