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Roberts can be criticized, but he's no Souter


The second-silliest reactions coming from today's ACA opinion are the conservatives comparing Bush II's nomination of Roberts to Bush I's nomination of Souter. This is hardly fair. Roberts has been a sound fifth conservative vote on critically important First and Second Amendment issues; he's consistently refused to abuse the Eighth Amendment to strike down legitimate exercises of state legislative power in criminal law; he's consistently enforced Congress's limitations on habeas relief. And today, he signed onto both the broadest restrictions of Congress's Commerce Clause power in decades and the first teeth in South Dakota v. Dole, limiting the ability of the federal government to bully the states. (The silliest reaction? The retroactive wishes for Justice Harriet Miers—which would be objectively silly even if it wasn't for the historical fact that Miers was nominated for Alito's seat, not Roberts's.)

One can be dismayed about the broad scope of the taxing power implicated by today's decision, but that is not anything new; for example, you've been paying extra taxes for failing to buy an electric car since at least the 2001 tax year, and extra taxes for not having a residential mortgage for even longer. (These are called tax credits, rather than penalties or taxes, but they're economically indistinguishable at the margin or otherwise, somewhat refuting Richard Epstein's complaint.)

The complaint is perhaps whether the "penalty" should be called a "tax" when Congress refused to call it a "tax"; the dissent would hold Congress to its language, while Roberts, alone, looks purely at the economics of the matter. Both arguments are colorable: after all, the Court has previously characterized "taxes" as "penalties" when they held the character of penalties, so why not vice versa? To which the Scalia dissent responds that this is the first time the Court has done so, and it is the finest of hair-splitting to say that a penalty isn't a tax for purposes of the Anti-Injunction Act, but is for purposes of the Taxing Power inquiry.

I've previously been unhappy with Roberts's tendencies to blue-line rewrite statutes to avoid tough constitutional questions; the canon of constitutional avoidance is one thing, but creating non-existent text to fix problems just seems to me outside the Article III power. We saw this in Free Enterprise Fund, NAMUDNO, and Wisconsin Right to Life. With it happening again today both in the construction of the penalty as a tax and the rewrite of the Medicaid penalties to the states, we can officially note an unhappy trend in the Chief Justice Roberts jurisprudence.

ACA opponents have an out in the Roberts opinion: it remains prohibited for the taxing power to be excessively punitive, a matter not well raised in the briefs. "Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it" (slip op. 43). But ACA imposes marginal income "taxes" of over 100% on certain members of the middle class who are in a particular donut-hole of income. Expect to see a new challenge in the future on this, and on other aspects of ACA.

Update: Typos in the Scalia dissent—which repeatedly refer to the "Ginsburg dissent"—show that it was originally meant as a majority opinion? [DeLong; see also Bernstein @ Volokh] One hopes very much that the Roberts flip was a sincere decision consistent with his previous overbroad canon of constitutional avoidance, rather than a "switch in time to save nine" prompted by the offensive degree of lobbying and attacks on the Court's integrity by the Obama administration and its allies.


Roberts is essentially another Souter; although he is far more cunning in that he was a better wolf in sheep's clothing waiting until major cases, e.g. the Arizona border and Obamacare cases, to show that he is a socialist. While he is no doubt calculating "fifth columnist", his legal reasoning is woefully suspect. He might as well have gotten in lockstep with Ginsburg, et al rather than put forward the embarrassingly specious rationale that the mandate is a tax. Even the inept Solicitor General's office did not waste time with that loser.
Although one is tempted to blame the Bushes, and they have much blame to be cast on them, Souter and especially Roberts were careful plants of the left and it would have been unrealistic to expect them to be found out prior to their confirmations.

I regret to say this, but I think the Chief Justice almost certainly has succumbed to the campaign of threat and intimidation that the White House directed at him personally and at the reputation of the Court more generally. In a word, Obama’s bullying worked. A decision so completely illogical is transparently an effort to accomplish certain political ends (probably more related to defending and burnishing the status of the “Roberts Court” than anything else) rather than render a coherent and judicious judgment. That doesn’t mean there are not some consolations, and that he did not try to accomplish some good things. One can salvage some here and there—maybe his effort to rewrite the law can serve to inhibit use of the Commerce Clause, even if a judicial redefinition of the mandate has about it a micromanaging quality that conflicts sharply with the judicial minimalism he claims to be following—and there may be some useful political weapons and energy to come out of this. But I think Roberts has badly misjudged what the effect is likely to be on his reputation, when future students of the law compare his decision to the powerful and cogent dissent that he chose not to join. But in toto it is a terrible missed opportunity, and all one can do is resolve to fight this thing out in the political arena. Thank God for the Tea Party, since we cannot look to the Supreme Court for anything, at least not in the short term. There is some genuine freedom in going forward now with no illusions on that count.

Ann Coulter nailed Roberts as a stooge in 2005 and laid the blame where it is deserved the ever worthless GWB! We will not be fooled again about the true role of this corrupted 'Supreme' Court, it is nothing but an appendage of our Big Gov tyranny and the crap on top of our INjustice system.

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