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Reconsidering the Power of Courts



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When Justice Roberts was appointed, I asked a distinguished jurist to predict his performance. He replied: “Roberts is a good man and an able lawyer, but he is also cautious and likely to keep his judgments very narrow. He will not go along with the Court liberals in legislating from the bench, but he will be very reluctant to reverse foolish laws or questionable judgments.”

The chief justice’s decision in this case seems to bear out this judgment. He made the four liberals the majority by joining them, but he did so on grounds that limited the government’s powers within the Commerce Clause and getting them to agree that Obamacare could be rendered constitutional only by financing it through taxation — taxation that the president had sworn to avoid and that he denied was the financial basis for his reforms.

It’s still a victory for the president, of course, but the likelihood is that it’s a Pyrrhic victory. The next election will be fought in large part on whether the voters want an unpopular policy that will cost them a lot of money. It will not be fought on the legitimacy of the Supreme Court or on the necessity to elect a president who will rein them back. Liberals who have been slavering over the “firebrand” Scalia will have to think again — if thinking is the word for what they were doing. And a reversal of Obamacare by the voters will have still greater legitimacy after today’s decision.

Conservatives too will have to think again. In recent weeks they have begun to believe that the Supreme Court might rescue them from bad political decisions. The two judgments this week — a refusal to endorse clearly an Arizona law that was plainly constitutional, and the rooting about in the legal entrails for a highly dubious justification of Obamacare — show that the courts, especially on issues where the cultural and media elites weigh in heavily, are likely to come down on the wrong side most of the time.

Judicial imperialism is still the cause of the Left, and popular sovereignty that of the Right. John Roberts said today, rightly, that the court did not exist to protect voters from the consequences of their decisions. He went on to prove it — excessively so, we may think. But the lesson remains true. Conservatives should favor limiting the power of the courts.



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