The battle begins. (Jonathan Ernst/Reuters)
John Roberts is a very clever man. Of course, he is incredibly gifted intellectually (easily the most intelligent of the conservative justices). But that does not always translate into cleverness. But the chief justice is different from his fellow conservative travelers on the Court. He knows that open proclamations of fealty to the Constitution in Exile
and to a return to the Lochner Era will never be accepted in one fell swoop. He is a radical incrementalist, using the language of judicial minimalism to build, precedent by precedent, the structure to achieve, over time, what incendiary radical extreme conservatives want to achieve: the undoing of the New Deal.
In the ACA decision (PDF), the chief justice struck two blows against progressive values: (1) he gained five votes for a theory of limitation of federal power under the Commerce Clause and the Necessary and Proper Clause of the Constitution; and (2) he gained seven votes (two of them quite shocking, from Justices Breyer and Kagan) for the novel proposition that states have a constitutional right to federal funding from existing programs without condition (or "coercion" as the Court termed it) of the federal government.
In my post A dark cloud on this sunny day: Roberts Court embraces Constitution in Exile, I argued that the rule regarding the Necessary and Proper power expressed by the chief justice and agreed to by the other four conservative justices presented a radical change to our understanding of the Necessary and Proper power. The chief justice presents this change, as he so often does, as no change at all. He presents his de facto overturning of precedent (including the overturn of McCulloch v. Maryland, Chief Justice John Marshall's seminal opinion regarding the Necessary and Proper power), as fidelity to precedent. It is not.
Compare Chief Justice Roberts' formulation with that of Chief Justice Marshall. Roberts wrote:
[T]he individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. For example, we have upheld provisions permitting continued confinement of those already in federal custody when they could not be safely released, Comstock, supra, at _ (slip op., at 1–2); criminalizing bribes involving organizations receiving federal funds, Sabri v. United States, 541 U. S. 600, 602, 605 (2004); and tolling state statutes of limitations while cases are pending in federal court, Jinks v. Richland County, 538 U. S. 456, 459, 462 (2003). The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power. [Emphasis supplied.]
Of course, the chief justice's statement that "the individual mandate vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power" is blatantly false. The Affordable Care Act is not a bootstrap from the individual mandate. In fact, the opposite is true: The individual mandate was enacted solely because in Congress' judgment, the Affordable Care Act could only be effective if a mechanism such as the individual mandate was included in it. In other words, it was a classic example of congressional use of its Necessary and Proper power. As the chief justice puts it, "exercise of authority derivative of, and in service to, a granted power." Regulation of the health care and health insurance market is undoubtedly valid under the Commerce Clause. The individual mandate is undoubtedly a valid exercise of the Necessary and Proper power to make effective the Affordable Care Act.
In McCulloch, Chief Justice Marshall stated:
If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.
Chief Justice Roberts' ACA ruling on the Necessary and Proper power cannot be harmonized with McCulloch
. But he did not overrule McCulloch
. Indeed, the chief justice claims fealty to McCulloch
. As I say, Chief Justice Roberts is a clever man.
(Continue reading below the fold)
We have seen this before from the chief justice. In Parents Involved, the chief justice claimed his decision to strike down desegregation plans in Seattle and Louisville were mandated by Brown v. Board of Education. The chief justice brazenly wrote:
The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
No kidding. In dissent, Justice Stevens retorted:
There is a cruel irony in THE CHIEF JUSTICEs reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. Ante, at 40. This sentence reminds me of Anatole France’s observation: [T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.
Yes, Chief Justice Roberts is a very clever man. And he is, to use the common parlance, playing "the long game." Today, the chief justice is hailed as a man of moderation, a pragmatic man, not the ideologue of the likes of Justices Thomas and Scalia. And this is what makes him the most dangerous threat to our progressive values. In the coming terms, when the chief justice shepherds the overturning of affirmative action and declares the Voting Rights Act unconstitutional, we will be reminded that the chief justice is a moderate, pragmatic minimalist by the usual suspects.
And we will look back at the cherished progressive values now under threat and wonder what happened. Unless we fight. We must also consider how the chief justice threatens the ability of the Congress to enact progressive solutions to our current and future problems.
In her dissent in the ACA case, Justice Ginsburg wrote:
Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion
Why indeed? Because the conservative project is to undo the New Deal. It is to impose severe restrictions on the ability of the national government to implement progressive solutions to our national problems. Climate change? The federal government may not be able to do anything about that. Income inequality? Could be a local problem. The progressive project understands how important it is that the national government can act to address our problems. The conservative project is hell bent on defeating this vision. Chief Justice Roberts is playing the long game to undermine the progressive project. To undermine the vision President Franklin Delano Roosevelt outlined in his 1937 Constitution Day speech
In these days when the undemocratic concentration of economic power has brought with it a corresponding concentration of legal ability against the democratic purposes of the Constitution, only the utmost vigilance and the utmost willingness to fight for our Constitutional heritage will guarantee its continuance.
Furthermore, a democracy cannot help counting, and seeking ways and means to avoid for the future, the terrible cost at which its ultimate triumphs have had to be achieved. […] We know that it takes time to adjust government to the needs of society and that deliberation upon the remedy is indispensable to wise reform. We also know that government must keep pace with changes in circumstances substantially as the changes occur. […]
These unwarranted delays in the accommodation of the government of today to the needs of today have not been due, I cannot too often repeat, to any language that the Fathers used in the Constitution to bind their successors. […]
I know and every lawyer knows that you will find nothing in our Constitution which forbids the national government to do any of these things. They have been forbidden or jeopardized, not because of anything the Constitution says but because men with axes to grind have chosen to put their lawyers' own notions of policy upon the silence or the vagueness of the Constitution. [Emphasis supplied.]
Chief Justice Roberts is their man for our age. He is the man for those with "axes to grind" against progressive values.
How can he be defeated? By denying him the votes necessary on the Supreme Court to enact his pernicious project. This is done by reelecting President Barack Obama and electing future Democratic presidents. There are no other options.
This is the most important progressive project of this election and future presidential elections.