What Was Justice Roberts Thinking?

By now, you should have heard that the Affordable Care Act was declared constitutional in a 5-4 decision by the Supreme Court with generally considered “conservative” Justice Roberts siding with the “liberals” to write the official decision. The decision has been very controversial, to say the least, with many both for and against it, but that isn’t what has caught my attention this month. Instead, I noticed that even among those against the act, not all of them disagreed with the Supreme Court’s decision.

The argument has been made that by accepting the mandate portion of the law as a form of tax, it has now been tied down and limited in what it can do. Although, it is unclear exactly what limits this places on this and future laws. Also, by calling it a tax, the Romney campaign can use this ruling to prove that Obama and the Democrats gave us a whopping tax increase after promising not to. The argument has even been made by those against it that it is in reality a tax because it will be administered by the IRS.

Going further, Roberts himself argues that it is not the role of the supreme court to protect the people from their own bad voting behavior, and that the court – rather than looking for ways to overturn laws – should look for ways to keep the laws – and that it should only overturn laws if no legitimate case whatsoever can be made to reconcile them with the constitution.

Of course, others point out that just because the IRS will administer the penalty doesn’t make it a tax anymore than the very same measure would become an emission regulation if administered by the EPA. Some point out that if it is legal for the government to tax an inactivity, it is quite legal for the government to do anything, which raises the question of what the founders meant with regards to the taxing authority of congress in the context of limited government. If they intended for the government to be unlimited, why did they include the tenth amendment in the constitution? Why bother? There are also those that vehemently insist that the very job of the Supreme Court is to protect people from their own bad voting behavior, arguing that the reason we have a republic rather than a pure democracy, with checks and balances on the different branches of government, and especially the ability of the Court to strike down laws as unconstitutional, is absolutely to protect the people from themselves.

In a way though, none of this is important. What we should be interested in is the behavior of the whole system, and not always so much the behavior of individuals. We don’t often fret so much when a few of our representatives vote the “wrong” way, so long as the majority vote the way we like. When the House passes bad bills, but the Senate blocks them, or when both House and Senate are blocked by a presidential veto, we say that the system worked as it was supposed to. If Roberts helps to declare the Affordable Care Act constitutional, but the people, after realizing their poor choices, elect representatives that will repeal the law, or defund it so the states will not have to set up exchanges, or even abolish the IRS so it cannot be administered, in the end we will say that the system worked. I do not fret when people merely endorse actions I do not agree with, because I recognize this as part of the process of knowing the “right” choice by first understanding all the “wrong” choices. If we keep this in perspective, thinking of the Court’s decision as “part of the process,” I believe that we can continue to work together in harmony.

Interestingly enough, I have been on the opposite side of this issue while on a completely different subject. While others make the argument that the role of the judge is simply to rule on the law and the role of the citizenry is to elect those that will write good law (and refrain from writing bad ones), I make the argument that it is the role of the jury to determine guilt or innocence of making an infraction and the role of the citizenry is to elect those that will write good law (and refrain from making bad ones). There are those I know that insist that if they ever sat on a jury wherein one was accused of breaking a law that they didn’t agree with, they would vote to acquit. I tried to argue to them that by shielding society from the consequences of bad laws by covering it up this way, the people would never learn, and the laws would stay on the books. In this case, I don’t believe in protecting the people from themselves. Besides, the jury is only a small piece of the puzzle; they aren’t the ones responsible for actually enforcing the bad law. Guilt is on the enforcers and the legislature, not on the jury for merely telling the truth.

I have also spoken out about “activist” judges that, rather than do their jobs by interpreting the law as intended by those who wrote it, read into whatever they want to “right some wrong” they see in society, rather than waiting for the people, through their representatives, to find a way to fix it that better suits them. It means the people have to waste time fighting their judges when they should be working together to solve the problem. Judicial activism is divisive, and it undermines the authority of the whole system when any branch of government reaches beyond its role into the roles of the others. This is another case where I don’t believe in “protecting the people from themselves.”

Practically speaking, the rule of law as I understand it, with carefully defined and divided roles and authority, may be a good system when properly understood, but not when it is not properly understood. If too few truly understand the system, it would be better not to have it, and operate more as a democracy than a republic. Keeping these principles in mind, and viewing today’s issues through the prism of the whole system, we can avoid a lot of unnecessary strife that keeps us divided into a bunch of tiny minorities, and we can instead scrape together a true majority to defeat the more radical ideological groups in our society that will never join us. At least, this is my take on the issue. Tell me what you think.