It appears that I’ve been punished for saying that judicial activism through judicial restraint is impossible. I’m okay with Roberts working hard to find a way to uphold the law rather than strike it down 5-4. But in this case his method seems to have been to mangle the plain sense of words to get them to conform to correct constitutional interpretation. Such excessive or obvious judicial creativity–no matter what end it serves–is surely judicial activism. Pete’s question–Does Roberts really believe what he’s saying about the law’s constitutionality?–is the one that anyone can’t help but ask. He seems to have been moved too much by admiration of his own Marshallian cleverness in the service of judicial statesmanship.
Roberts could have helpfully suggested how the law could be fixed–how the mandate could be turned into a tax or the Medicare expansion become uncoercive on the states. But then the law would have to fixed and re-passed by Congress. That’s something, of course, the present wouldn’t do. So Roberts did the fixing through is twisting, which actually he, under the Constitution, is not supposed to do.
June 28th, 2012 | 5:38 pm
It would have made more sense if he had just gone along with the majority and said that the Commerce Clause did give Congress this power. So, what did you say yesterday about Obamacare, Romney and all and how much of it was destroyed by Roberts vote?
June 28th, 2012 | 5:44 pm
If the bill was 20 pages and was not exactly the product of an intense negotiation between thousands of sophisticated parties, I would agree with you.
But in its actual context whether or not you want to call it Marshallian cleverness, or judicial activism, or obvious judicial creativity, I am okay with it.
I will take your “brand” from the example of the work product(here the majority opinion) Just as I don’t mind being a Marxist who might critique $180 Jordan’s as an example of commodity fetishism, when the actual components and labor cost $7. (not that Jordan’s actual greatness shouldn’t add something to the cost).
What is the labor theory of value, for the inclusion in the bill of some language that is improper? FRE 403 would prevent me from citing Marx(unfairly prejudicial to my argument)…but essentially we could say just what is the significance of a few words in a bill that is over a thousand pages long.
To send the bill back would essentially be to succumb to the commodity fetishism of “penalty”. Because quite literally these words would have cost hundreds of millions of dollars. Nor is this sort of legal malpractice possible to evade in a huge bill with hundreds of moving parts. Some parties hold out on the basis of a single clause.
If the Roberts route is not followed basically you could kiss bi-partisanship goodbye forever. No one would trust that the more or less conservative or liberal guy(as the case may be) wasn’t simply working on ways to ninja the bill with jurisdictional hooks.
Lets put it this way
June 28th, 2012 | 7:37 pm
That is not clear, but lets put it this way… when I say Trademark, I do intend to distinguish it even from Branding. The interests of the branding folks(think Mad Men) is simply to play to the consumer. i.e. lets get everyone to think of pop as coke. This ends up causing the “genericism” problem (and is why folks do studies to show what folks call soda in Ohio, folks in Georgia call Coke.)
In any case, for the most part the branding folks beat the trademark lawyer, and it isn’t necessarily all that different in Washington where the campaign managers and media work to massage image? So it is at least plausible that in the scheme of a negotiation, someone would (have some sort of marketing data..studies show:) and object to the wording in a certain section. Allright, Senator X…we will redraft this part for you, if you promise to vote for it.
The difference between the Originalism of Scalia and that of Roberts is that Scalia does not look at the legistlative history, nor does he consider the political process.
So arguably Roberts might look at the writtings of James Madison, he might in some sense believe that no language is so precise as to be all encompassing. But Scalia rejected the first offer of a judicial appointment because he wanted to be in the D.C. Circuit, to work with patent language and precision.
“So Roberts did the fixing through is twisting, which actually he, under the Constitution, is not supposed to do.”…So Scalia would say…
But Scalia is actually wrong, Massive Negotiated Contracts(which is basically what this bill was) require a certain amount of twisting and fixing, especially when the language involved is essentially functionally equivalent, but not “emotively” or “branding” equivalent.
That is good jurisprudence by Roberts, and it will continue to be so. It is written at a much higher level than I can muster, but the common sense of the proposition shines thru.
Also why I say that for the most part what folks call originalism is nothing more than Scalia’s jurisprudence, all the other judges are judicial activists and must be because they go beyond the text.
In other words if a bill is a negotiated contract, scalia’s jurisprudence is the only pure “four corners”…and just as in contracts, the simpler the contract, the more ballance in sophistication of the parties the better Scalia’s jurisprudence is.
But I think for Roberts some element of Scalia’s originalism breaks down the more massive the contract/bill (negotiated instrument)… That is Roberts considers and takes seriously on some level at least the notion of cureable contracts, or de minimis non curat lex.
So I accept Roberts opinion, and reject Scalia’s judgement every time I go to McDonalds and get a sunday where they forget to give me peanuts, or a shake where they forget to give me a cherry. In each case the employee has violated McDonalds policy and trademark.
The larger the shipment, the more complex the product, the more one can find minute technical violations of specs.
The question isn’t the one asked by Pete, “Does Roberts really believe what he’s saying about the law’s constitutionality.”
Does Pete believe that there is no seperation between the more precise language of policy makers, and the language of the marketeers? Here Pete seems to be a sophisticated party, does he really believe there is any hope for “good faith” bi-partisanship in a gridlocked congress if the court follows Scalia and the logic of Patent, in pressing for a precision that rejects the American principle of de minimis non curat lex?
Also keep in mind that the bill isn’t even fully ripe, it really hasn’t gone thru the administrative agencies. (It hasn’t even met the Pelosi test:) The court grants to the administrative agencies functional discretion under Chevron (in pop-legalism, it is called the 2 step:) to more or less resolve ambiguous language.
The Roberts opinion seems right for a lot of reasons.
June 28th, 2012 | 9:13 pm
Actually, I believe the solicitor general when arguing in favor of The Affordable Care Act, did present the option of the power of congress to tax as one way to uphold the individual mandate requirement. Roberts did not make this up. He was responding to all the arguments laid out before him, which he is absolutely supposed to do. He found one of the arguments persuasive, and not the other.
This was a very narrow and careful decision. This was not activism. He was simply removing the court from the story by saying this debate belongs in the political arena, the court cannot solve it.
He found a reasonable way to uphold a law duly passed by the legislative branch, based on one of the aruments (although not the primary one), put forward by the administration.
June 28th, 2012 | 11:43 pm
[...] JAC’s Peter Lawler offers his brief reaction here. [...]
June 29th, 2012 | 3:48 pm
Jane, I think you’ve captured the spirit of Roberts, but the counter- and more plausible argument is given by the pessimistic Pete above.
May 21st, 2013 | 9:45 am
[...] JAC’s Peter Lawler offers his brief reaction here. [...]
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