What Was Roberts Thinking?
Considering yesterday's astounding news, I've written an extra column for Hoover's Defining Ideas in which I argue that Chief Justice was acting neither as an umpire nor a statesman—only a lawyer.
It will take some time to pull together all the discordant threads in Chief Justice Robert’s decision, which will continue to puzzle, bemuse, please, and outrage for months and years to come. He did well on his treatment of the Medicaid extension. But on the crucial issue of the individual mandate and the taxing power, he sounds like a lawyer who is too clever by half. The point here is ironic, for without question, the Chief Justice came to his decision by self-consciously marching to the beat of two drummers: judge and statesman.
The Roberts Tango: Statesman or Umpire?
He takes on the role of the umpire judge because he claims to be a lawyer, and not a social planner, so that his decisions have to do with questions of entitlement and government power, not with wisdom and politics. It may be that Supreme Court justices are not, as Roberts has sometimes said, just umpires who call balls and strikes. But the reason that this model of strict interpretation has long had a strong appeal to the Chief Justice is that it affords him a way to resist the charge that he has led the Court in the usurpation of the functions of the democratic branches of government, by making policy as he sees fit...continue reading at Defining Ideas.
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Comments:
Jun '10
Re: What Was Roberts Thinking?
Supposedly, Roberts' explanation is, if only one interpretation of the law preserves its constitutionality, then that's the interpretation that you have to use. And apparently, he's willing to move heaven and earth to find that one.
Nov '10
Re: What Was Roberts Thinking?
Do we get another shot at this thing when it takes effect and someone refuses to pay this tax on the grounds that it is an unconstitutional tax because: 1) It is an illegal capitation or direct tax not covered by the 16th Amendment and 2) It originated in the Senate and not the House as Required by Sec. 7 of Article I of the Constitution?
Edited on July 1, 2012 at 1:52pm