It's not much of an overstatement to say that there are two things that are wrong about the U.S. Supreme Court and one thing that is right. |
The two things that are wrong are, in no particular order, the left wing and the right wing. The thing that is right is the person who sits in the middle when the court poses for photographs or delivers decisions -- Chief Justice John Roberts.
That takes a little unpacking. For years, dating back at least to the 1973 Roe v. Wade decision on abortion, there has been a tendency on the part of liberals and conservatives alike to seek via the legal system what they have not been able to accomplish legislatively.
The result has been a regrettable amount of judicial legislation, with appointed judges making public policy decisions that should be dealt with via the legislative and executive branches of government.
Chief Justice Roberts has a more limited view of the power and prerogatives of the judicial branch of government.
His recent vote on the case involving the Affordable Care Act is a prime example of this. It would have been very easy for him to vote with the conservative wing of the court.
There is every reason to believe that philosophically he did not agree with the act. And it would have been very easy for him to vote to strike down the act as payback for the fact that President Obama, while a member of the U.S. Senate, voted against confirming him.
Chief Justice Roberts, however, is cut from different cloth. He takes his responsibility to uphold the Constitution very seriously.
He has frequently quoted Justice Oliver Wendell Holmes, Jr. (whose tenure extended from 1902 to 1932), who observed that assessing the constitutionality of a law "is the gravest and most delicate duty that this court is called on to perform."
Chief Justice Roberts also cites with approval Justice Holmes statement that "as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act."
And that is precisely what he did when assessing the Affordable Care Act. He concluded that the commerce clause of the U.S. Constitution, which gives the federal government authority to regulate interstate commerce, does not extend to compelling individuals not currently engaged in commerce to enter the marketplace.
However, Chief Justice Roberts found another interpretation that he concluded provided a valid warrant for the individual mandate requirement — viewing it as a tax from which individuals would be exempted if they purchased insurance.
This interpretation provided a rationale for ruling that the individual mandate requirement is constitutional, in effect echoing Justice Holmes' observation that "our plain duty is to adopt (the interpretation) which will save the act."
It is worth underscoring that Roberts is in no way saying that whatever Congress wishes to do is just fine.
In rejecting the commerce clause rationale, he was in effect saying that there are limits as to what Congress can do under the authority of this clause.
And in voting to strike down a key aspect of the Medicaid mandate that was part of the Affordable Care Act, he demonstrated concern about using the authority of the federal government to coerce state action, once again giving expression to his belief in respecting the constitutionally mandated separation of power.
Last week we celebrated our nation's birthday. There is much that is right about our country. Having someone of Chief Justice Roberts' stature heading up our nation's highest court is part of what is right about America. May all future court appointments be as enlightened.
Dan Lee teaches ethics at Augustana College; firstname.lastname@example.org.
Rock island, IL Details
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