Bench Memos

Conservatives’ Misguided Criticism of Roberts

Michael Walsh’s post on the Corner echoes some things I’ve been reading in the right-leaning sectors of the blogosphere, and that I hope do not catch on. The suggestion is that Chief Justice Roberts is somehow a disappointment — that his decision today tells us something bad about “the Bush Legacy” — because he upheld, as a “tax,” the Affordable Care Act’s individual mandate.

First things first:  Professor Barry Cushman has debunked devastatingly the notion that there was a “switch in time that saved nine,” prompted by President Roosevelt’s Court-packing threats and so the comparison between the Chief Justice and Justice Owen Roberts seems unfair to both of them.

But also, and more important, the Court’s decision today contains some of the most muscular enumerated-powers and constitutional-structure-matters language of any (majority) opinion in decades. Judicial conservatives, it seems me to me, should be thankful (and grateful to the chief justice) for the approach taken by a majority to the Necessary and Proper Clause and to the so-called Spending Power, and should probably see this “good” about the ACA decision as outweighing the “bad” (i.e., that, because the mandate is, contrary to the president’s earlier assurances, a “tax,” it will have to be repealed legislatively and electorally, rather than judicially). The ruling on the Medicaid expansion, in particular, is a big “win” for federalism, it seems to me.

Mr. Walsh’s post is called “Won’t Get Fooled Again”, but I don’t see how anyone was “fooled” before. President Bush appointed, as he said he would, first-rate judges and justices, and the law is better for it. And, in my view, one of the strongest reasons to support Governor Romney is the fact that he is far more likely than is President Obama to appoint judges who understand the role of the Court and the vocation of a judge in the way that John Roberts does.

One more bit of silver lining: Today’s decision gives other courts the chance to rule — and I am confident that many will — that the contraception-coverage mandate violates the First Amendment and the Religious Freedom Restoration Act.

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