June 28th, 2012What Disaster?by Dena Hunt

Reaction to the Supreme Court ruling upholding Obama’s health care law is just as loud and swift as everybody predicted. On one extreme Republican end, lots of apocalyptic hallucinations are popping up; on the other extreme Democratic end, we see the messianic hallucinations of 2008 re-awakened.

The decision was momentous, yes, but disastrous? In my admittedly limited understanding, I see Justice Roberts’ deciding vote as salvific, not by its yes-or-no, but by the reasoning behind it. Many conservatives are already denouncing him as a traitor to conservatism, but wait a minute. The fact that he insisted on writing the decision himself is significant. Paraphrased, he said that it was not the Court’s business to rule on the relative “quality” of congressional law or the governmental policy that produced it. The Court does not determine whether a law is “good” or not. The Court’s function is limited to determining the law’s constitutionality—nothing more. Duly passed by a majority of Congress, the law is upheld, except for a small portion regarding penalties to states.

Well, thank heavens. The ruling will end the judicial activism that has characterized the Court’s decisions in recent years, an intrusion into the legislative branch that had begun to threaten the Constitution itself. Why? Because, working as the law does—through precedents—this ends it. Under this written precedent, there will be no more partisan influence infecting the Court and pre-determining judgments on the basis of ideology. This decision may well turn out to be much more important for us in the long view than the outcome of this particular law. He even went so far as to point out that the Court does not control Congress (right!), but that the electorate does (right!) This is not a disaster for our freedom; it is salvation of it.

In all the competitive machinations of modern partisan politics that pervade our lives, it’s easy to forget the single most basic tenet in the American idea of freedom. And Justice Roberts has just done more to protect it and to restore its power than anything that’s happened in recent memory. No, the Court does not decide what will or will not become law. We do. And we do it by voting.

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  • June 28 2012 | by Titus

    My dear Miss Dena, you do not spend much time reading Supreme Court opinions, do you? Mr. Chief Justice Roberts' pronouncements on the topic are neither original nor particularly useful. They mirror the exact same thing the Court has said in every constitutional case since the beginning of the republic, regardless of what it was doing in that opinion. The Court always claims to be performing its proper, limited function and never admits to doing anything else. Its self-congratulatory sayings on the topic are dicta, and show up again only as citations the next time the Court wants to give that particular speech about itself.

    We can say some reasonable things about the restraint and usefulness of the Chief Justice's opinion, but this isn't it.
  • June 28 2012 | by Manny

    I'm sorry Dena, but I have to disagree. Some things ARE left to the SCOTUS, otherwise what's it there for? If it were popular to limit religious freedom, as it well might be, the SCOTUS is there to preserve the first admendment. If something is unconstitutional, it must be struck down. Anyway, you can read my thoughts on the subject at the blog I share, here:
  • June 29 2012 | by Sophia Mason

    Dear Dena,

    You're quite right that Roberts is probably trying here (as he has done, admirably I must say, throughout his tenure as chief justice) to reign in activism on the part of the Court. Certainly, if the provisions within ACA/Obamacare are constitutional, albeit otherwise objectionable, it is not the place of the Court but of Congress, and indirectly of the electorate, to see to the law's modification or repeal.

    The only difficulty is, Roberts' assertion that ACA IS constitutional is based on an extremely dubious understanding of the mandate to buy health care as a tax, and not as a regulation of activity under the commerce clause. If Roberts is wrong about in interpreting ACA as a tax--and given the other justices and the many legal scholars of all ideological bents who disagree with him, chances are good that Roberts IS wrong--then the Court made a horrible ruling here, and ACA, despite what Roberts' would like to think, is actually unconstitutional.

    As for the ruling ending judicial activism--Oh! if wishes were horses ...
  • June 29 2012 | by Dena Hunt

    Titus and Manny,
    You are right, Titus, I spend zero time reading Supreme Court opinions, and I readily bow to the superior wisdom of those who do. Perhaps I was naively impressed by Roberts' explanation of his position. In weak defense, I'll say that George Will and Charles Krauthammer in The Washington Post this morning agree with me, in summary if not in detail.
    In any case, it's now a completely political issue, and at that point, I tune out. (I already know my vote, and I'm not a fan of spectator sports.)
  • June 29 2012 | by Dena Hunt

    Yes, I understand. There are now claims that his upholding of the law as a tax measure (instead of commerce regulation), he was in fact legislating from the bench. That's unfair, however. Seems people forgot that the administration's attorneys argued the case from that point; i.e., it wasn't an "interpretation." Odd, isn't it, that during the arguments for the case, no one mentioned the fact that O's attorneys said, If it can't be upheld as a commerce regulation clause, it should be upheld as a tax. In other words, that wasn't Roberts' idea; it was the option given the Court by O attorneys.
    O lied, of course, to us about raising taxes for the law--but, hey, what's new?
  • June 29 2012 | by Manny

    I think there are various Conservative views on Roberts' decision; I guess they reduce to two camps. I am not with those who think this was a good thing. Frankly I think this was horrendous.
  • June 30 2012 | by Mary

    I am relieved to read your article Dena. I was born and brought up in the UK and know well the blessed peace of mind which comes from universal health care for all. Now I am in the US, which I love, but am bemused by good Catholics who seem to see free healthcare for all as the work of the devil. Have they not read our beloved Popes writings on this subject?
  • June 30 2012 | by Sophia Mason


    The fact that it was argued that way by O's attorneys--that some could give the law that interpretation--doesn't mean that it was the right interpretation, or a non-activist interpretation. Activism=deciding the issue of a case according to some standard other than the law. The folks upset with Roberts are upset because they feel like he did this NOT out of a deference to the law, but out of a desire to avoid trouble. That would still be activism on his part, if it were true.

    Incidentally--not that this matters too much, but as a factual point--O's attorneys did not initially intend to argue that it was a tax. (They didn't want to make a liar out of the President.) It was the Court that asked to hear the question of whether or not the mandate could be interpreted as a tax. Whether it was Roberts or one of the other justices or a few of them who wanted to hear that question debated--that I don't know. I don't think it's public knowledge, actually.
  • June 30 2012 | by Dena Hunt

    To be honest, I agree with you. I don't like the UK's system, but this one is worse. And the one that's coming is worse still.
    On some points, the UK has as much (political) trouble as the US in medical care, but its basic system is better.