Richard Epstein of the Hoover Institution and the University of Chicago Law School gives the Chief Justice some tough love in “What Was Roberts Thinking? The Chief Justice was neither an umpire nor a statesman. Only a lawyer.”
There are many wise words in Prof. Epstein’s column, which I heartily encourage anyone visiting this site to read.
My only quibble is that the professor could have been harsher on the Honorable John Roberts. Really, Roberts held that the Obamacare individual mandate is a penalty not a tax so the Court could take jurisdiction but that the mandate is a tax not a penalty so the Court could uphold mandate’s constitutionality. Why do Congress’s words (“penalty”) not the provision’s alleged function (“tax”) count for determining standing but the alleged function not the words count for determining constitutionality? This is “too clever by half,” as Epstein observes. The only “logic” operating here is political: pick and choose which meaning is convenient to get the outcome you want.
Even this ruse fails, as Epstein argues, because the mandate is in fact a penalty, not a tax. In the dissent, Justice Antonin Scalia notes that the word “penalty” occurs 18 times in the portion of the statute dealing with the individual mandate, whereas “tax” occurs in other provisions, demonstrating that Congress chose “penalty” deliberately, because, after all, the thing so labeled is not a tax. As Scalia argues, Roberts “saved” the Affordable Care Act (a.k.a. Obamacare) by “rewriting” it. Thus, Roberts’s “judicial modesty” was actually a case of “judicial overreach.” Roberts joined the liberals to legislate from the bench.
What Roberts the “statesman” doesn’t get is that when the judges engage in policy-driven, results-oriented, jurisprudence, they forfeit their claim to impartiality. Each time they do this, they reinforce the conclusion that the system is rigged and that justice is to be found only in the strength of one’s own party or faction — or one’s own arms. In other words, when justices are no better than politicians in black robes, they undermine the social compact and bring back the state of war.
Seventeenth century English philosopher John Locke, with his usual clarity, said it all in the Second Treatise (Chapter III, Of the State of War):
Sec. 20. But when the actual force is over, the state of war ceases between those that are in society, and are equally on both sides subjected to the fair determination of the law; because then there lies open the remedy of appeal for the past injury, and to prevent future harm: but where no such appeal is, as in the state of nature, for want of positive laws, and judges with authority to appeal to, the state of war once begun, continues, with a right to the innocent party to destroy the other whenever he can, until the aggressor offers peace, and desires reconciliation on such terms as may repair any wrongs he has already done, and secure the innocent for the future; nay, where an appeal to the law, and constituted judges, lies open, but the remedy is denied by a manifest perverting of justice, and a barefaced wresting of the laws to protect or indemnify the violence or injuries of some men, or party of men, there it is hard to imagine any thing but a state of war: for wherever violence is used, and injury done, though by hands appointed to administer justice, it is still violence and injury, however colored with the name, pretences, or forms of law, the end whereof being to protect and redress the innocent, by an unbiased application of it, to all who are under it; wherever that is not bona fide done, war is made upon the sufferers, who having no appeal on earth to right them, they are left to the only remedy in such cases, an appeal to heaven. [emphasis added]