Tuesday, July 10, 2012
How foolish does the media look now, after weeks of demagoguery, now that the Court has issued two huge victories for the Left in one week? Leftists, you will recall, made outrageous accusations against the Supreme Court—the institution that, since the 1950’s, more than any other, has forced godless nihilism upon our country, and then, following stare decisis, reinforced it—before they even heard these latest cases. Left-wingers like Ezra Klein accused the Court of politicking for Republicans to get them elected; President Obama—a constitutional law professor, as we’ve been reminded a zillion times in the past five years—called striking down a statute “passed with a strong majority” (read: party-line vote passed on reconciliation) “unprecedented.”
Even after a major victory for the statists, centralizers such as the New Yorker, E.J. Dionne, the Atlantic and others made ad hominem attacks on Senior Associate Justice Scalia. His crime? Mentioning the executive branch’s decision not to enforce immigration laws in the context of a case about the executive branch not enforcing immigration laws. How dare he! Even when you lose, you’re not safe if you disagree with leftists.
The thing we conservatives hoped for was to strike down the decision on the terms on which it was offered: as an extension of the commerce clause. But that would have provided little legal bulwark against future government depredations, and would have given untold momentum to President Obama’s reelection; there would’ve been no end of unsubstantiated, heated, over-the-top rhetoric about “judicial activism” and “conservative battering rams.” What Roberts did was, ultimately, much more powerful and—dare I say it—much more conservative:
By exercising judicial restraint, he set an important model for the humility the Court should feel in the face of the people’s will exercised in elections, and their elected officials in Congress. In effect, though, he has handed back BHO an incoherent mess of sophistry where the president once thought he had a “signature and historic domestic legislation.”
By labeling the ACA penalty a tax, Roberts re-framed the issue: ACA is a huge, new burden on the middle-class and is rooted in the most coercive form of federal power – the power to tax the people directly. If the American people want federal government healthcare at the price of a huge, new, direct tax, then we conservatives cannot save them: in a free society, you get the government that you ask for, and, ultimately, that you deserve. Roberts has given us the very best ground on which to fight this battle, and he has located the battle in the appropriate place, the political realm. Would that the jurists in Roe vs. Wade or Casey v. Planned Parenthood had the same wisdom!
Roberts, by not only striking down the Medicaid expansion but in getting a 7-2 majority, he has circumscribed ACA at its headwaters (or strangled it in its crib, if you like) as an overweening, and ‘over-federalized’ mandate on the states. Now the states will retain discretion as to what services they cover, and the federal government’s assumed power to coerce by cutting funding is limited. This is a huge step in preserving states’ power against the federal government, and there are seven justices who agree.
The more I think about what Roberts has done, the more I like it. It was sophisticated, and it advanced conservatism along several fronts: judicial restraint, labeling a tax correctly, building a bulwark against future raids on the commerce clause, and erecting an even higher wall around Federal abuses of federal-state coercive funding mechanisms. These are all good things, and they will redound to conservatism’s benefit now and in the future.
Roberts, as a conservative, is well-aware that the next president will have three Supreme Court appointments to make. Does Roberts want three more liberals on the Court, or does he want three more conservatives? Senator Obama, Senator Biden, and Senator Reid all voted against confirming John Roberts as Chief Justice, while Mitt Romney said that he would appoint people like John Roberts to the Court: I bet I know who has his vote.
Mitt Romney raised four million dollars in one day following the ruling. He might want to call our Chief Justice and thank him.