Washington Post columnist Kathleen Parker (she's on the right) had a perfectly inane opinion piece about
"The public trial of Justice Roberts." It argues that President Obama and the left are trying to inappropriately influence Supreme Court Chief Justice Roberts through the media. SPOILER ALERT... Kathleen Parker is not a lawyer. Or familiar with the law. Or the separation of powers really. In her own words,
I leave this debate to others more worthy, but the idea that decisions must be popular and/or bipartisan is silly on its face. Just because something is popular doesn’t make it “right” or legally correct. And, difficult as this is to accept in our Twitter culture, Supreme Court justices needn’t be popular.
Let's unpack this a bit, shall we? She will leave this debate to others who have, at least, a fleeting familiarity with the law but then goes on to say the arguments of those she is attacking revolve around the decision on the Affordable Care Act (ACA) being popular/bipartisan. She's quite right that that would be "silly on its face." The only problem is that no one is arguing that. What the
Jeffrey Rosen article that she links to and picks choice quotes from goes on to say is that:
But, by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance.
A bit different there, eh? The real issue is not that a decision to strike down the ACA would be unpopular/bipartisan, because she correctly points out that the role of the Supreme Court is decidely not to be popular or bipartisan, it is that such a decision would be legally wrong and against the proper role of the Supreme Court. A properly conservative, rather than an activist, Supreme Court would respect
judicial precedents laid down and act under the presumption that a statute passed by Congress is Constitutional. The latter point is what POTUS was speaking to in the Rose Garden quote Parker uses. The strong majority isn't supposed to be boosting the law popularity street cred, it is re-enforcing the fact that the law thus should be presumed Constitutional by the judges. Further, as put by
Jonathan Cohn and
Jack Balkin, the Court should not limit itself to the arguments presented but should, and must, according to
their mandate (pun intended) look at all possible ways to deem the law constitutional. Much like our criminal law system, Federal statutes are constitutional until proven not. As put by Mr. Cohn in arguing that even if the Court wasn't convinced that the mandate was constitutional as argued it could EASILY be found a constitutional tax:
Nor does it matter that Congress did not specifically invoke the tax power in its findings of fact. As the Supreme Court explained in Woods v. Cloyd W. Miller Co. in 1948, “[t]he question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.” Federal statutes are presumed to be constitutional, and the courts are required to consider if they fall within any of Congress's powers even if the statute doesn't explain its constitutional basis. (Most statutes don't.) One might object that a special rule should apply for taxes. If the government is going to change the tax laws, it must state this clearly so that the people can express their displeasure by voting their representatives out of office. But this has never been the law. Moreover, the existence of the mandate has not snuck up on the public unawares, and anybody who has not been paying attention by now will figure out it out soon enough when they file their form 1040.
It has long been obvious that Parker is a shill for the GOP, but articles like this just make it that much more obvious. What support of this article by people such as
Randy Barnett at Volokh Conspiracy, a sharp legal mind and vociferous opponent of the ACA, shows is that they are equally (
new word alert,) "shilly". Which is truly sad.
All of this sound and fury could have been easily avoided by the Obama administration and the Solicitor General if this was tackled in a proper way, without a mind to politics, but that is a rant for another day. For now all I'll say is, Ms. Parker please please PLEASE "leave this debate to others more worthy" next time.
UPDATE: Jeffrey Rosen very reasonably defends himself against Kathleen Parker in a recent
The New Republic article. The very reasonable gist of the response is:
The idea that I was trying to “intimidate” or “bend” the Chief Justice came as a surprise to me. The justices have already voted in the health care case and are hardly influenced, in any event, by legal punditry. On the contrary, I suggested that this is a moment of truth for Chief Justice Roberts because I’ve been a staunch supporter of the vision of bipartisanship that he articulated when he became Chief Justice, and have continued to defend him during the past six years when others have denounced him for failing to live up to the standards he set for himself.
IN 2006, AT THE END of his first term as Chief, Roberts told me in an interview that he thought it was bad for the Court and the country when the justices handed down decisions by ideologically polarized, 5-4 votes. Roberts said he would make it his mission, as Chief Justice, to persuade his colleagues to avoid 5-4 rulings on constitutional grounds and instead to converge around narrow, unanimous opinions that both liberals and conservatives could embrace. “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions,” Roberts told me. “I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution. And to the extent that my colleagues share that concern, we should be able to make some progress.”
Ouch, actually quoting the Chief Justice himself instead of making reflexive partisan reactions about his inability to withstand pressure from big liberal bullies. That's got to be embarrassing for those of the Parker/Barnett ilk. Especially since Barnett should know better. So really Ms. Parker, leave it to those, well nevermind more worthy, how about those more qualified.
Except Randy Barnett.
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