The Corner

Law & the Courts

Now John Roberts Is Complaining about Creative Court Rulings

Chief Justice John Roberts certainly twisted logic and language into a pretzel last week in his decision upholding Obamacare’s health-exchange subsidies. But today, as the Supreme Court issues its final opinions, the judicial shoe was on the other foot.

Roberts wrote a stinging dissent arguing against a 5–4 high court opinion ruling that independent commissions could play a role in redrawing legislative districts every decade. Such commissions have become popular in recent years as a response to the gerrymandering of districts by incumbents in state legislatures. Several states, such as California and Arizona, bypassed the legislature in trying to get commissions created instead and won voter approval to set them up.

But in Roberts’s book the Constitution’s 17th Amendment, creating the direct election of senators by voters, clearly gives the state legislatures this power. “What chumps!” Roberts writes of those reformers who battled for the amendment’s adoption in 1913.

“The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States. What chumps! Didn’t they realize that all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people’?” Roberts asked sarcastically. “The Court today performs just such a magic trick with the Elections Clause.”

Roberts’s dissent calls the court’s decision a “judicial error of the most basic order.” “Unfortunately, today’s decision will only discourage this democratic method of change,” he concluded. “Why go through the hassle of writing a new provision into the Constitution when it is so much easier to write an old one out?”

Well said, and would that the common sense and plain textual reading exhibited by Roberts in the redistricting cases had carried over to his Obamacare decision.

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