“Bitter concurrence” may sound like an oxymoron, but Justice Ruth Bader Ginsberg, joined by colleagues Stephen Breyer, Sonia Sotomayor and Elena Kagan, filed one yesterday in NFIB v. Sebelius, the ObamaCare case.
Ginsburg was full of snark, and her target was Chief Justice John Roberts (citations omitted): “According to the Chief Justice the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive. . . . The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it. . . . The Chief Justice’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation. . . . The Chief Justice also calls the minimum coverage provision an illegitimate effort to make young, healthy individuals subsidize insurance premiums paid by the less hale and hardy. This complaint, too, is spurious. . . . Failing to learn from this history, the Chief Justice plows ahead with his formalistic distinction between those who are “active in commerce,” and those who are not. . . . The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. . . . If long on rhetoric, the Chief Justice’s argument is short on substance.”
This outpouring of vitriol led the Washington Post’s E.J. Dionne, always conscious of the need for civility, to pen a column demanding her resignation. Oh wait, sorry, that was another justice’s dissent in another case. Still, a call for Ginsburg’s resignation is a “fairly possible” construction of the Dionne column.
If Ginsburg’s side won the case, why is she so angry? Because on the central constitutional question at issue, Roberts in fact issued the legal left a powerful rebuke. To quote from his opinion–a portion of it in which he spoke only for himself but with which the four dissenters (that is, the actual dissenters–Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito) agree: “The Commerce Clause is not a general license to regulate an individual from cradle to grave simply because he will predictably engage in particular transactions.”
Those of us who follow the Supreme Court closely can name cases in which the court reached the right decision but did so with faulty constitutional analysis. Sometimes this has long-lasting negative repercussions. One of our favorite examples is University of California Regents v. Bakke (1978), in which the high court by a 5-4 vote struck down a scheme of racial discrimination in college admissions.
Justice Lewis Powell was in the majority. But he wrote a lone opinion expressing the view that the goal of having a “diverse student body” justified racial discrimination. Colleges that wished to practice discrimination exploited this loophole, and in 2003′sGrutter v. Bollinger, Justice Sandra Day O’Connor adopted it as a constitutional doctrine, albeit an intellectually frivolous one, for reasons Justice Anthony Kennedy made clear in his dissent. Nearly 35 years after Bakke, discrimination persists thanks to Justice Powell’s half-baked notion.
In NFIB v. Sebelius, Chief Justice Roberts did something of the opposite. He provided some splendid analysis of the Commerce Clause, setting a precedent that may have beneficial repercussions in coming years. He then proceeded, as the dissenters wrote, “deep into the forbidden land of the sophists.” He engaged in a convoluted reconstruction of the statute in order to reach a bad result.
That drew some revealing plaudits. Jonathan Chait of New York magazine: “Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled. The long-term war over the shape of the state goes on, but the crisis of legitimacy has been averted. I have rarely felt so relieved.”
The “crisis of legitimacy” that Chait claims Roberts averted would have consisted of people like Chait screaming bloody murder about a 5-4 decision whose result they didn’t like. A 5-4 decision whose result they like is just dandy. In other words, the source of the hypothetical “crisis of legitimacy” was not the decision or the 5-4 vote but the left’s rejection of it.
James Taranto on NFIB v. Sebelius.
We’d go a step further and say that the left in America is experiencing its own crisis of legitimacy, in part as a result of the welfare state’s crisis of resources. The combination of slow economic growth and already sclerotic government makes it increasingly difficult to expand the latter in order to maintain the loyalty of Democratic voting blocs. The Democrats’ and public-sector unions’ political failures in Wisconsin are the most dramatic example of the increasingly adversarial relationship between taxpayers and those who are rewarded with tax dollars for supporting the party.
The pre-emptive attacks on the Supreme Court were of a piece with the increasingly desperate and absurd charges of racism that those on the left hurl at their opponents. Again, they are projecting their own illegitimacy onto others.
The most charitable way of describing Roberts’s apparent motive in upholding ObamaCare is that even as he was advancing good legal doctrine, he wished to shield the court from a political storm. That is an understandable impulse, though we are skeptical that yielding to it was wise.
“Liberals who waxed hysterical about a politicized court need to reckon with the fact that the most ‘political’ of all the opinions on the health care law was the one that ultimately upheld it,” writes the New York Times’s Ross Douthat. Actually, they don’t need to reckon with it unless they suddenly develop intellectual integrity.
But a reckoning may be in order for Chief Justice Roberts. He appears to believe that in order to get beyond politicization, he must first take account of politics. Perhaps instead the way to stop deciding cases on the basis of politics is to stop deciding cases on the basis of politics.