To Rule, or Not to Rule, That Is the Question

The airwaves and blogs are atwitter with comments about how Justice Roberts has abandoned the conservative ship and set sail to the "left" side of the vast oceans of judicial statesmanship.  I've heard some pretty venomous stuff coming from my conservative brethren, and it pains me -- not only because I think we should stay away from such hostilities (not that I've always been serene, mind you), but more importantly because I believe they are wrong.

Imagine John Roberts had written something like this:

Yet cases may readily be imagined, in which a tax may be laid ... upon motives and grounds wholly beside the intention of the constitution.  The remedy, however, in such case is solely by an appeal to the people at the elections;  or by the salutary power of amendment, provided in the constitution itself.

Folks would still be pretty upset.  Right?  After all, that's pretty much what he said.

Would everyone still call him an activist judge?  A liberal in conservative clothing?


But would you be interested in knowing who penned those words?  And when?

Might you want to know if the author was the most influential constitutional law scholar of the 19th century?  What if he was a man considered to be on the "strong federal" government side of the big government versus states' rights political ledger?

Would you be surprised to know the man is Joseph Story, and the text, appearing here with very slight editing (I took out the phrase "or a treaty made," and the corresponding "s" that made "case" plural), is in Section 374 of his seminal Commentaries on the Constitution (1833)?

The point I'm making here is that Justice Roberts penned a seriously courageous and brilliantly conservative opinion.

Yell at me and then, please, take a deep breath and hear me out.

That his words are courageous is obvious.  No dummy, he.  We all know that he knew that we would all scream like a stuck banshee.

But the other point -- that his opinion is brilliantly conservative -- ay, there is the rub!  And I'm going to get a few slings and arrows for this...but here goes.

The Founding Fathers envisioned three co-equal branches of the federal government.  Indeed, until the Supreme Court-decided Marbury v. Madison, 5 U.S. 137 (1803), the Supreme Court had never taken for itself the power to boss around the other co-equal branches of government.  Each branch was given specific powers we all know so well.  The legislative to write law.  The executive to enforce law.  And the judicial to interpret the law.  Easy.

The Founding Fathers knew that problems would abound if one branch tried to do two jobs.  Imagine the mischief if, say, the legislative was given the power to enforce the law, or the executive the power to write the law.  Aside from there being no "checks and balances" with such a system, the conflict of interest would be so great as to enable a tyranny.

Oh, wait.  That is what's happening!  But that is another article.

Thus, the Founding Fathers gave law-writing ability to the only branch of government that was designed to be representative of the people.  And note the pains our fathers went to -- representation by state and by population through two houses with intricate rules for passage of laws in, and between, each house.

And we might ask: why was law-writing ability withheld from the judicial and executive branches?  Well, the short answer is that neither was designed to be representative.  Neither was designed to give due consideration to all the nation.  The executive would clearly "represent" most closely the party that won the election, and the judges in the federal judiciary would "represent" most closely the executive that put them on the bench.

Only the legislative was trusted with law-making ability.

And here is where we run into problems.  What happens when the legislative writes a law that the judiciary thinks is beyond its powers in the Constitution?

If the judges like it, but find for it little or no support in the Constitution, they are, if unrestrained, likely to "create" a right-- a constitutional right -- and say no one may violate it.  Thus we have Roe v. Wade, 410 U.S. 113 (1973) (women have a right to privacy in their bodies that no state may disregard with an anti-abortion law), the high-water mark, or at least the most famous case, of judicial activism.

Yet, can anyone find in the text of the Constitution a right to privacy in one's body?  Of course you can't, because it's not there.  Roe simply created a right out of whole cloth.  Now, I'm not saying the policy is or is not sound, ethical, just, or whatever.  What I'm saying is that divining such a right from the text of the Constitution is to take on the job of the legislative branch of government.  It's to wade into a social/political issue best left to the one body of government that is representative (I won't get into, here, the fact that the power to grant such a right does not inhere in the Constitution and therefore is reserved to the states).

Moreover, the risks in wading into social/political issues such as abortion are outweighed by the benefits.  The court's prestige, its image as a bastion of fairness, is severely weakened, society is fractured, law is set in stone for everyone, and one more thing.  And this will get us back to Justice Roberts.

This one more thing was brilliantly discussed by constitutional law scholar, professor, and dean of Stanford Law School John Hart Ely, in his seminal work, Democracy & Distrust, A Theory of Judicial Review.

Dean Ely explained a deeply disturbing aspect of judicial activism.  He asked, how are nine old and crotchety (my terms, not his) justices to even know the direction of the "winds of change" in society, and if they know them, how are they to ensure that they don't contribute to them too much or too little?

Dean Ely advised justices to look at the process by which a particular law came into being.  Assuming the law is not a violation of the text of the Constitution, Ely would have the court examine that business of the House "deeming" the ObamaCare bill to have passed.  Ely would have likely been inquisitive of Nancy Pelosi's comment that we must pass the bill to see what is in it.  Such breakdowns in the representative process would have certainly merited very close scrutiny.

Unfortunately, such a ruling would have still left everyone upset.  Regrettably, we have come to the point where the nation wanted a verdict on the merits of the law.

Professor Matthew J. Franck has incisively noted this aspect of American thought in Against the Imperial Judiciary; The Supreme Court vs. the Sovereignty of the People:

What is alarming is the degree to which ordinary citizens seem to expect that the Court will resolve the nation's deepest political difficulties in a statesmanlike fashion;  citizens are pleased or displeased at the outcomes of hotly contested "constitutional" issues, but please or not they seem convinced that the Court is the right place to have them resolved. Id. p. 30.

And that brings us to John Roberts.

Just as Joseph Story advised in 1833, Justice Roberts eschewed the widespread American desire to have a definitive ruling on the merits.  He avoided a final resolution for good reason.

Imagine what America's airwaves would have been filled with had he sided with the conservatives.  Likely, we would have "occupy" riots in every major city, at least.  The media (which is decidedly leftist) would be excoriating the Court...

At best, the prestige of the Court would be severely diminished for years to come.

I believe Justice Roberts knew all this, changed course from his initial desire to strike down the law in toto, and decided to take a process-based approach.

Importantly, and thankfully, he solidified the limits on the federal government to regulate through the Commerce Clause.  That was good and proper.  Even a process-based justice is allowed to look at the text of the Constitution and ask, has Congress done something that the text says it cannot?  Congress tried and was rebuffed.

And thusly did Roberts preserve the standing of the court in the minds of most Americans.  My hope is that this action will pay dividends down the road, when a case such as District of Columbia v. Heller (affirming that the 2nd Amendment applies to individuals) is re-examined by a more hostile court, as will certainly happen if President Obama is re-elected.

And just as importantly, Justice Roberts kept the Court from wading too deeply into this social/political morass that is ObamaCare.  He made clear the appropriate remedy, just as Joseph Story did 179 years ago.

Mr. Reddy received his J.D. from The University of Michigan in 1985. His just-released novel, "By Force Of Patriots," brings to life the social, political, and legal issues at the heart of America's current angst. It is available at