Pretending to Understand

by Ramesh Ponnuru

NRO ran an editorial criticizing Chief Justice Roberts a few hours after the Obamacare decision came out. Rob Beschizza writes that one word of that editorial has persuaded him to quit the magazine.

In the wake of today’s Supreme Court ruling upholding The Affordable Care Act’s insurance mandates, The Review offered a collective editorial that began like so:
The Court, by a 5–4 margin, refused to join all the august legal experts who insisted that of course it granted that authorization, that only yahoos and Republican partisans could possibly doubt it. It then pretended that this requirement is constitutional anyway, because it is merely an application of the taxing authority. Rarely has the maxim that the power to tax is the power to destroy been so apt, a portion of liberty being the direct object in this case.
br> Now, leave aside the magical thinking here, as if it were enough to stock a sentence with certain words for it to attain salience. Instead, let me just repeat the key phrase in it, to make it clear.
The supreme court pretended that the requirement is constitutional.

They pretended.

This is American conservatism’s immune system going into anaphylactic shock. Fun to watch, while it lasts! (Bolding and italics in original).

I have no idea what Beschizza is getting at with the “magical thinking” sentence, but I’ll leave it aside since he does. I think I have some idea what he’s getting at with the attack on the word “pretended.” The choice of word, however, seems to me to be perfectly defensible. Most people who have thought at all about these matters believe that the Constitution is not equivalent to whatever the Supreme Court happens to say it is. The Court can get the Constitution wrong, sometimes terribly and willfully wrong.

If this were not true, the justices would be totally at sea in trying to construe the Constitution correctly. That imperative would make no sense for them, since any interpretation they issued would be correct by definition.

The editorial takes the position that the individual mandate is unconstitutional. Chief Justice Roberts agrees, by the way. Roberts decided, however, that the mandate is not a mandate: It is not a command that citizens buy insurance, but a tax on those who do not buy it. Many, many observers have found Roberts’s reasoning here shaky: In fact, that is the consensus view, not the view of some right-wing fringe. So, in short, it is entirely fair and arguably true to say that Roberts “pretended” that an unconstitutional law is constitutional.

If this point of view elicits uncomprehending hostility in Beschizza, then perhaps he is indeed better off not reading conservative commentary.

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