Obama, Fox News and the Social Contract

Were the commentators at Fox News asleep the day they discussed the social contract in class?  That is one explanation for the outrage voiced by Fox concerning the President's "You didn't build it" speech.    Either that or they are just piling on based on a poor choice of words.

Here's what happened.   President Obama gave a speech in Roanoke, Virginia.   He said:
 

If you were successful, somebody along the line gave you some help.  There was a great teacher somewhere in your life.  Somebody helped to create this unbelievable American system that we have that allowed you to thrive.  Somebody invested in roads and bridges.  If you’ve got a business — you didn’t build that.  Somebody else made that happen.  The Internet didn’t get invented on its own.  Government research created the Internet so that all the companies could make money off the Internet.

The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together.  There are some things, just like fighting fires, we don’t do on our own.  I mean, imagine if everybody had their own fire service.  That would be a hard way to organize fighting fires.

 The Fox folks took umbrage at that.   A headline read "Obama Insults Small Business Owners."    A press release from the Romney campaign said "OBAMA TO BUSINESS OWNERS:  'YOU DIDN'T BUILD THAT.'"     

So, did  the President say that private enterprise is worthless and that you are not worthy unless you are (in the words of a Fox News commentator I heard this morning) a community organizer or a union boss?   The answer is no.    

If you look at the rest of the speech, the President talked a lot about the importance of initiative and hard work, things that Republicans like to champion.

He said:

And what this reminded me of was that, at the heart of this country, its central idea is the idea that in this country, if you’re willing to work hard, if you’re willing to take responsibility, you can make it if you try.  That you can find a job that supports a family and find a home you can make your own; that you won’t go bankrupt when you get sick.  That maybe you can take a little vacation with your family once in a while — nothing fancy, but just time to spend with those you love.  Maybe see the country a little bit, maybe come down to Roanoke.  That your kids can get a great education, and if they’re willing to work hard, then they can achieve things that you wouldn’t have even imagined achieving.  And then you can maybe retire with some dignity and some respect, and be part of a community and give something back. 

That’s the idea of America.  It doesn’t matter what you look like.  It doesn’t matter where you come from.  It doesn’t matter what your last name is.  You can live out the American Dream.  That’s what binds us all together.  

So, did Obama give a schizophrenic speech?   Did he advocate the value of hard work and responsibility on the one hand while saying that all good comes from government on the other?   While his wording may have been a bit awkward, I understand the President to be referring to that most American of ideals, the social contract.

The social contract is a concept developed by, among others, Hobbes, Locke and Rousseau.   It postulates that men give up some of their natural liberties to come together and form governments to protect their liberties.   According to Hobbes, in the state of nature, life would be "solitary, poor, nasty, brutish and short."    According to Locke, governments drew their legitimacy from the consent of the governed.    

The social contract is firmly emphasized in America's founding documents.    The Declaration of Independence states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

 The preamble to the Constitution states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

 These documents incorporate the social contract ideas that governments derive their powers from the consent of the governed and that they exist to "establish Justice, insure domestic Tranquility, provide for the commence defence, promote the general Welfare, and secured the Blessings of Liberty."

The free enterprise system that Fox News and Mitt Romney so strongly treasure depends on the social contract.    Without the firm hand of government to protect it, small businesses would be plundered by those with more brute force.   Without government, there would be no court system to enforce contracts.   

However, under the social contract, government does more than simply allow free enterprise and private property to exist.   It also does those things which make life better for everyone, but which individuals could not achieve on their own.   That includes things like the interstate highway system.   

That brings me back to the President's speech.   What was it that he said people didn't build?   In context, I believe that he said that our common efforts make it possible for our individual efforts to succeed.   That is the social contract theory of government, that government exists to protect our liberties, but also to promote the general welfare.    Thus, President Obama did not insult small business; rather, he simply acknowledged that we have a debt to those who came before us as well as those who make our prosperity possible. 

 

  

Was Chief Justice Roberts' Obamacare Opinion Really a Conservative Decision?

On June 28, 2012, the Supreme Court announced its decision in National Federation of Independent Business v. Sebellius, No. 11-393 (U.S. 6/28/12).   You can find a link to the decision here.    The four opinions run 193 pages.    This is partially due to the fact that the Justices were writing for the ages with lengthy expositions full of quotable language.  The volume was also due to the fact that there were three competing camps within the Court.    Justices Scalia, writing for himself and Justices Alito, Kennedy and Thomas, authored a tour de force on limited government, while Justice Ginsberg, writing for herself and Justices Breyer, Kagan and Sotomayor, made their case for a robust federal government able to confront the nation’s problems.    Chief Justice Roberts, acting as the umpire between the factions, took the pragmatic approach, paring back Congress’s power somewhat without rendering an overly ideological opinion.     

What the Case Was About:

The Supreme Court considered constitutional challenges to two provisions of the Patient Protection and Affordable Care Act of 2010 which is sometimes referred to as Obamacare.    The two provisions that the Court considered were:

   1.   The requirement that individuals purchase a minimum level of health insurance or else pay a penalty (the individual mandate); and

    2.   An expansion of Medicaid, which gives funds to the States on the condition that they pro­vide specified health care to all citizens whose income falls below 133% of the poverty level.

The Affordable Care Act contained over 2,000 pages so the Court reviewed only a small portion of its provisions.   However, the individual mandate was by far the most controversial aspect of the law.

The Supreme Court considered four questions with regard to these provisions:

   1.   Did the Anti-Injunction Act prohibit the Court from considering the constitutionality of the individual mandate until after someone had actually paid the penalty?   Under the Anti-Injunction Act, a tax may not be challenged until someone has paid it.

   2.   Did Congress have constitutional authority to enact the individual mandate?

   3.   If the individual mandate was struck down did the Court have to invalidate the entire statute?

   4.   Did Congress have authority to expand Medicaid and withhold all Medicaid funding from states that did not participate?

Of these four questions, two were narrow and technical, while the two issues about the authority of Congress raised major questions about the power of Congress under the Constitution.   I will write more about the competing viewpoints later on.

The Result

   1.   The Anti-Injunction Act Does Not Apply

All nine justices agreed that the Anti-Injunction Act did not prevent them from considering the case.     They all agreed that because the Affordable Care Act classified the exaction to be paid for failure to maintain health insurance as a “penalty” that it was not a “tax” that had to be paid first in order to be challenged.    If the Court had ruled the other way, it would have been required to rule that the challenge was premature and require the parties to wait until someone actually paid the penalty before it could be challenged.   This would not have occurred until 2014 at the earliest because the provision does not take effect until 2013 and the penalty is payable along with the taxpayer’s federal tax return.    All nine justices agreed that it was not necessary to make the country wait another five years to find out whether the individual mandate was constitutional.

   2.   The Individual Mandate Is Upheld But the Justices Disagree on Why

Chief Justice Roberts and Justices Scalia, Alito, Kennedy and Thomas formed a majority holding that the individual mandate could not be upheld under either the Commerce Clause or the Necessary and Proper Clause.    On the other hand, Chief Justice Roberts and Justices Breyer, Ginsberg, Kagan and Sotomayor ruled that the individual mandate could be justified as a tax.   This required the majority to do some dexterous distinguishing.     They had just unanimously ruled that the penalty was not a tax under the Anti-Injunction Act; however, the majority ruled that it was a tax under the power to tax clause.    The majority said simply that the Act turned on the label given to the payment so that calling it a penalty made it a penalty.   However, for purposes of the Constitution, they could look at its substance.   For example, the penalty was payable to the Internal Revenue Service and was payable along with the taxpayer’s federal income tax return.     Was this a rationalization?   Yes, but the alternative for the justices who felt that this was a tax was to leave the country in limbo for another four years.     The justices did the country a service by giving an answer even if they had to contort themselves to do so.

   3.   Because the Justices Found the Individual Mandate to Be Constitutional, They Did Not Decide Whether They Would Have Been Required to Strike Down the Entire Statute.

Justices Scalia, Alito, Kennedy and Thomas who dissented would have struck down the law in its entirety finding that the individual mandate was too critical to the law to allow the Affordable Care Act to survive without it.

   4.   Congress Could Not Coerce The States to Accept a Medicaid Expansion on Penalty of Losing Their Existing Funding, But The Program Could Still Be Extended.

Chief Justice Roberts and Justices Alito, Breyer, Kagan, Kennedy, Scalia and Thomas all agreed that Congress could not tell the states to expand their participation in the Medicaid program to include the working poor on condition of losing their existing Medicaid funding.    The federal government can entice states to participate in federal programs by offering benefits, but cannot coerce them to do so.    Thus, the federal government could legally withhold part of a state’s highway dollars if it did not increase the drinking age to 21.    However, where all citizens of states are currently required to pay Medicare tax, telling the states that they had to expand Medicaid or lose their existing funding constituted unconstitutional coercion.    Only Justices Ginsberg and Sotomayor would have allowed this.    However, Chief Justice Roberts and the four liberals all held that it was permissible to allow the Medicaid expansion to proceed so long as states had a free choice to participate or not.   Because the federal government was paying the entire cost of the expansion, a state would be foolish to turn down these benefits.   However, the majority gave them the option to do so.   The curmudgeonly quartet of Scalia, Alito, Kennedy and Thomas would have struck down the entire expansion on the basis that they would be required to re-write the law to reach the majority’s result.

Threading the Needle

Part I of the Opinion, which was authored by Chief Justice Roberts and joined in by Justices Breyer, Ginsberg, Kagan and Sotomayor, set the tone for Chief Justice Roberts to attempt to thread the need between striking down the Act for political reasons and granting unlimited power to Congress.    Early on, he stated:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

In our federal system, the National Government pos­sesses only limited powers; the States and the people retain the remainder. Nearly two centuries ago, Chief Justice Marshall observed that “the question respecting the extent of the powers actually granted” to the Federal Government “is perpetually arising, and will probably continue to arise, as long as our system shall exist.” (citation omitted).  In this case we must again determine whether the Constitution grants Congress powers it now asserts, but which many States and individuals believe it does not possess. Resolv­ing this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries.

Opinion, page 2.    This statement epitomizes Chief Justice Roberts’ view of the Court as an umpire calling balls and strikes but not playing the game.   The Chief Justice took pains to stake out that he was not endorsing Obamacare; instead, he was merely determining whether the pitch was inside the strike zone or not.

Immediately following, he stated:

The Federal Government “is acknowledged by all to be one of enumerated powers.” (citation omitted). That is, rather than granting general authority to perform all the conceiv­able functions of government, the Constitution lists, or enumerates, the Federal Government’s powers. Congress may, for example, “coin Money,” “establish Post Offices,”and “raise and support Armies.” Art. I, §8, cls. 5, 7, 12. The enumeration of powers is also a limitation of pow­ers, because “[t]he enumeration presupposes something not enumerated.” (citation omitted).The Constitution’s express conferral of some powers makes clear that it does not grant others. And the Federal Government “can exercise only the powers granted to it.” (citation omitted).

Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative pro­hibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.

Opinion, pp. 2-3.   This passage is significant because it shows an acknowledgement by all nine justices that under the Constitution, Congress must act within its enumerated powers.    While the justices may not agree on the extent of those enumerated powers, they are united in the basic principal.

Two Views of the Role of Government

Stepping back from the minutiae of the decision, it is really about two competing visions about the role of government.  On the one hand, Justices Breyer, Ginsberg, Kagan and Sotomayor believe that the Constitution contains broad authorization for the people to act through their elected representatives.   On the other hand, Justices Scalia, Alito, Kennedy and Thomas wish to restrain the power of Congress kept within strict limits.    Straddling the middle was Chief Justice Roberts. 


While Chief Justice Roberts ultimately carried the day, the real debate over the scope and role of government is contained in the opinions of Justices Ginsberg and Scalia.

Justice Ginsberg viewed the Commerce Clause as authorizing Congress to solve problems that affect the economy on a national basis.    Much of her concurring opinion was devoted to why the Court should have sustained the individual mandate under the Commerce Clause.

Justice Ginsberg began her opinion by comparing health care to retirement benefits.  He stated:

The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s. In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to THE CHIEF JUSTICE, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

Opinion of Ginsberg, p. 2.

She went through an extended discussion of the effect of health care on the national economy, noting among other things that health care accounts for 17.6% of the national economy and that 99.5% of persons over age 65 will have visited a doctor.   However, because medical providers must provide care regardless of ability to pay, those with insurance subsidize those without it.  Further, persons with pre-existing conditions may not have access to coverage at all.   Interestingly enough, in making this argument, Justice Ginsberg cited extensively to Congressional findings, news articles, medical journals and even news blogs.   In order to adequately describe the problem, she went far beyond mere legal precedent. 

To Justice Ginsberg, this represented a national problem which required a national solution.   She stated:

Aware that a national solution was required, Congress could have taken over the health-insurance market by establishing a tax-and-spend federal program like Social Security. Such a program, commonly referred to as a single-payer system (where the sole payer is the Federal Government), would have left little, if any, room for private enterprise or the States. Instead of going this route, Congress enacted the ACA, a solution that retains a robust role for private insurers and state governments. To make its chosen approach work, however, Congress had to use some new tools, including a requirement that most individuals obtain private health insurance coverage.

 Opinion of Ginsberg, pp. 8-9.

Well into her opinion, Justice Ginsberg finally lays out her vision of the Commerce Clause.   He describes how he believes the Commerce Clause was intended by the framers.

What was needed was a “national Government . . . armed with a positive & compleat authority in all cases where uniform measures are necessary.” See Letter from James Madison to Edmund Randolph (Apr. 8, 1787), in 9 Papers of James Madison 368, 370 (R. Rutland ed. 1975). See also Letter from George Washington to James Madison (Nov. 30, 1785), in 8 id., at 428, 429 (“We are either a United people, or we are not. If the former, let us, in all matters of general concern act as a nation, which ha[s] national objects to promote, and a national character to support.”). The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.”

 Opinion  of Ginsberg, p. 13.

She also described the Commerce Clause as giving Congress “the power to regulate economic activities ‘that substantially affect interstate commerce.’”   Opinion of Ginsberg, p 15.

Given this expansive view, it not surprising that Justice Ginsberg would have upheld the Affordable Care Act under the Commerce Clause.   She stated:

Straightforward application of these principles would require the Court to hold that the minimum coverage provision is proper Commerce Clause legislation. Beyond dispute, Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce. Those without insurance consume billions of dollars of health-care products and services each year. (citation omitted). Those goods are produced, sold, and delivered largely by national and regional companies who routinely transact business across state lines. The uninsured also cross state lines to receive care. Some have medical emergencies while away from home. Others, when sick, go to a neighboring State that provides better care for those who have not prepaid for care.

 Opinion of Ginsberg, p. 16.

She also thrashed the notion that the Affordable Care Act required persons to purchase an unwanted product.

Virtually everyone, I reiterate, consumes health care at some point in his or her life. (citation omitted). Health insurance is a means of paying for this care, nothing more. In requiring individuals to obtain insurance, Congress is therefore not mandating the purchase of a discrete, unwanted product. Rather, Congress is merely defining the terms on which individuals pay for an interstate good they consume: Persons subject to the mandate must now pay for medical care in advance (instead of at the point of service) and through insurance (instead of out of pocket). Establishing payment terms for goods in or affecting interstate commerce is quintessential economic regulation well within Congress’ domain.

Opinion of Ginsberg, p. 22.

Thus, Justice Ginsberg took a view of the Constitution as authorizing a robust federal government to solve problems of national importance through its authority under the Commerce Clause.   Justice Scalia and his fellow dissenters took a much more constrained view.   They viewed commerce as a specific and limited activity which could be regulated but not compelled.   

In a direct rebuff to the liberal justices, Justice Scalia wrote:

The dissent treats the Constitution as though it is an enumeration of those problems that the Federal Government can ad­dress—among which, it finds, is “the Nation’s course in the economic and social welfare realm,” ibid., and more specifically “the problem of the uninsured,” ante, at 7. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national­ problem power.

Opinion of Scalia, pp. 14-15.   I love this passage because it captures the essence of the argument and spits it back out in plain language.

In numerous passages, Justice Scalia sounded the theme that failure to engage in commerce was not commerce.  

That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurispru­dence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

Opinion of Scalia, pp. 2-3.   (“Ne plus ultra” means the highest point or the exteme.   It is not clear how saying it in Latin makes it any more meaningful).

Article I, §8, of the Constitution gives Congress the power to “regulate Commerce . . . among the several States.” The Individual Mandate in the Act commands that every “applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individ­ual, is covered under minimum essential coverage.”(citation omitted). If this provision “regulates” anything, it is the failure to maintain mini­mum essential coverage. One might argue that it regu­lates that failure by requiring it to be accompanied by payment of a penalty. But that failure—that abstention from commerce—is not “Commerce.” To be sure, purchas­ing insurance is ”Commerce”; but one does not regulate commerce that does not exist by compelling its existence.

***

We do not doubt that the buying and selling of health insurance contracts is commerce generally subject to federal regulation. But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond “adjust[ing] by rule or method,” (citation omitted), or “direct[ing] according to rule,” (citation omitted), it directs the creation of commerce.

***

Here, however, Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesir­able consequences of the regulation. Congress’ desire to force these individuals to purchase insurance is motivated by the fact that they are further removed from the market than unhealthy individuals with pre-existing conditions, because they are less likely to need extensive care in the near future.

Opinion of Scalia, pp. 4, 5, 8.

But the health care “market” that is the object of the Individual Mandate not only includes but principally consists of goods and services that the young people primarily affected by the Mandate do not purchase. They are quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance. Such a definition of market participants is unprecedented, and were it to be a premise for the exercise of national power, it would have no principled limits.

***

If all inactivity affecting commerce is commerce, commerce is everything.

***

 It threatens that order because it gives such an expansive meaning to the Com­merce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroy­ing the Constitution’s division of governmental powers.

Opinion of Scalia, pp. 11-12, 13, 14   (emphasis in original).     Justice Scalia’s viewpoint is aptly summarized in the quote above stating that “(i)f all inactivity affecting commerce is commerce, commerce is everything.”    To Justice Scalia, governmental powers must be defined and limited.   Therefore, an all-encompassing view of commerce is anathema to him.

Justice Scalia also stressed the need to restrain the powers of the federal government lest it become all powerful.  

If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor pro­fane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).

Opinion of Scalia, p. 8.

This formidable power, if not checked in any way, would present a grave threat to the system of federalism created by our Constitution. If Congress’ “Spending Clause power to pursue objectives outside of Article I’s enumerated legislative fields   (citation omitted)), is “limited only by Congress’ notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives ‘power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed,’(citation omitted). “[T]he Spending Clause power, if wielded without concern for the federal balance, has the potential to oblite­rate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach.” (citation omitted). 

Opinion of Scalia, p. 32.     (Note, in the interest of brevity, I have skipped over Justice Scalia’s discussion of the spending clause except for the excerpt above.  While there is a lot of interesting material there, I could not find a way to condense it down to a manageable discussion.).

In conclusion, Justice Scalia stated his central thesis that liberty depended upon preserving the structural protections contained in the Constitution.

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provi­sions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

Opinion of Scalia, p. 65.

Final Thoughts

   1.  The Justices could use an editor.    The desire to write monumental opinions combined with the time pressure to complete them within the same term results in opinions that are much too long.    Tome-length opinions tend to confuse rather than clarify since there is language to support virtually any proposition within the opinions.

   2.   Citing to the Founding Fathers is about as useful as citing to the Bible.    Because the Founding Fathers did not always agree with each other and wrote profusely, it is possible to find some support from the Founding Fathers for virtually any proposition.    It is interesting that both Justices Ginsberg and Scalia resort to the Founding Fathers for support of their diametrically opposed views of the Commerce Clause.   In a passage that I wish I could have found a way to incorporate into the post, Justice Scalia talks about the contrasting views of Madison and Hamilton with regard to the scope of the Spending Clause.    However, in most instances, the Founding Fathers are cited as though they spoke with a monolithic voice when in fact, they did not.

   3.   The dueling opinions of Roberts, Scalia and Ginsberg are reflections of our national angst over the role of government.     On the one hand, there is a fear that an all-powerful government will strip us of our liberties.    On the other hand, there are an equal number who believe that a strong government protects our liberties by providing security and protection from the vagaries of life.     If you go onto Facebook, you will see people referring to the President as the “Commander-in-Thief” or decrying the Koch Brothers and Citizens United as the end of democracy.     In such a highly partisan atmosphere, it is refreshing to see Chief Justice Roberts emerge as the responsible adult in the room who tries to make people play nice despite their differences.

   4.   I believe that Chief Justice Roberts’ opinion was conservative in the older sense of the word.    Believe it or not, the definition of conservative is not lock-step opposition to President Obama.   In the older sense, definitions of conservative include emphasizing stability and continuity, tending to oppose change, favoring traditional values and being restrained in style.   In the judicial context, conservative means employing the judicial power sparingly and deferring to the other branches of government when appropriate.   While the Scalia opinion waxed eloquent on the virtues of separation of powers, it gave very little deference to the role of Congress as an equal branch of government.   The Scalia opinion was not deferential toward Congress; rather, it was hostile to the entire notion of government.    This strikes me as activist rather than conservative.   In contrast, Chief Justice Roberts recognized that an open-ended Commerce Clause power was no restriction at all, but that there were other avenues for the government to act.    Because Congress could have authorized a single payer national health care system under the power to tax and spend, it makes logical and conservative sense that a less intrusive system based on the private sector would also be constitutional.   Thus, upholding the statute was the conservative choice.

   5.   While I come down on the side of Chief Justice Roberts, I think that all of the opinions make for a fascinating study in civics.    While I don't agree with Justice Scalia this time, his writing is almost lyrical.   This is good stuff, just a bit too much of it.


Mea culpa:   The original version of this post changed Justice Ginsberg's gender.   Several alert readers brought it to my attention and I have corrected it.  My apologies to Justice Ruth Bader Ginsberg.