Supreme Switch

"I think that when statesmen foresake their own private conscience for the sake of their public duties, they lead their country by a short route to chaos."
--Sir Thomas More (A Man for All Seasons)

Following last Thursday's ruling, I read several theories positing that Chief Justice Roberts slanted his position on the Affordable Care Act (ACA) case to quell accusations about 'court bias'--particularly among left-leaning intellectuals in the media and elsewhere.

Then CBS's Jan Crawford broke this story yesterday, citing sources close to the deliberations that Roberts changed his position and allied with the four Liberals to salvage the centerpiece of the ACA known as the 'individual mandate.' The story does not directly claim that boosting the image of the court was Roberts' intent although innuendos were made.

The Crawford piece reports that, in the full Court conference that followed the oral arguments in March, Roberts sided with what ultimately became the four dissenting justices, who were of the opinion that the ACA should be struck down in its entirety. Being chief justice, Roberts elected to write the historic opinion himself.

Crawford's article observes that by May, sources of 'external pressure' were building in the form of countless new articles and editorials warning of the damage to the Court, and to Roberts' reputation, if the individual mandate was struck down. While some justices 'turn off' the media when cases are pending to avoid potential for influence, Crawford reports that Roberts stays plugged in, and is sensitive to how the public views the Court.

It was during this period that Crawford's inside sources said the Roberts became "wobbly" on his position, and soon began to pursue the tax argument. Roberts even tried to pursuade the dissenters, particularly Justice Kennedy, on the tax argument's merits, but they would have none of it. On the contrary, it was Kennedy, who by his voting record and opinions may in fact be the most libertarian member of the Court, who dogged Roberts to return to his original position. Kennedy also had a heavy hand in writing the dissent.

The fact that the four dissenters wrote a joint opinion that does not mention Roberts, even in the section where they sided on the mandate's unconstitutionality w.r.t. the Commerce Clause argument, was no accident. Rather, it was a signal that the four justices were upset with Roberts' switch and his logic, and no longer wished to engage in debate with him.

Crawford is careful to note that it is not known why Roberts switched his view. Perhaps he truly felt that his arguments were consistent with the Constitution he swore to uphold.

However, and this is ME writing rather than Crawford, the tortured logic of his opinion w.r.t. the tax argument (see Roberts: 31-44) suggests otherwise. When I read jumbled thought processes that include arguments that even a junior high schooler might refute, I suspect that the writer is either unclear in his/her position, or stuggling mightily in an unnatural way to make a viewpoint 'work.'

From there, postulating that CJR had ulterior motives, such as preserving the integrity of institution that he heads, that were clouding his judgment, is easy to do.

This is speculation, of course. Only the Creator knows what motivated Roberts to act as he did. However, if he did indeed choose to act in a manner that favored the Court's institutional standing over individual liberty, then this is a classic case of judicial interest impairing freedom.

Convenient Inconsistency

"But does it make any sense?"
--Dr Stephen Falken (WarGames)

When reading discourse surrounding Chief Justice Roberts' healthcare ruling, one frequently encounters words like 'twisted,' 'tormented,' and 'tortured' to describe his arguments for justifying the individual mandate as a tax. I've described it similarly.

Most bothersome to me about Roberts' opinion is its inconsistency. When arguing the individual mandate as unconstitutional under the Commerce and Necessary and Proper clauses (see Roberts 15-30), Roberts constantly refers to the framers' intent to limit federal government power. Because the individual mandate forces individuals into unwanted commercial activity, Roberts concludes that the mandate is unconstitutional.

Then Roberts commences his tax argument (see Roberts 31-44). Not only is the argument disjointed and logically 'jumpy,' but it is void of the original intent basis of the previous section. Instead of considering the framers' intent to limit federal government power via taxes, Roberts attempts arguments that imply that federal taxing power is essentially unlimited. What he construes to be unconstitutional via the Commerce clause argument is construed as constitutional via Congress's taxing power.

Thus, we have a ruling that implies that Congress can lawfully command any behavior that it pleases, whether or not the subject of that behavior is a power granted to the Congress by the Constitution, and it may punish noncompliance with that command, as long as the punishment is called a 'tax.'

How this is consistent with the framers' original intent of limiting government power escapes me. Roberts recognizes the limited government notion in one part of his argument but ignores it in another part.

The hallmark of strong arguments is consistency in underlying reason. Weak arguments, on the other hand, conveniently pick and choose.

Roberts chose convenience.

SCOTUScare

I'll pick up my guitar and play
Just like yesterday
And I'll get on my knees and pray
We won't get fooled again
--The Who

The primary goal of judicial process is arriving at and acting on the truth. Sometimes this does not occur. The process may be erroneous or incomplete which prohibits the truth from being obtained. Even if obtained, the truth may not be acted on due to either intentional or incompetent misbehavior.

In high courts, responsibility for arriving at and acting on the truth lies with a judge or panel of judges. A jury does not process evidence and render decision. Instead, it is the bench's duty to obtain the truth.

An institution that permits outsiders to evaluate the extent to which judges have upheld this responsibility when rendering decisions is the written opinion. High courts must explain their rationale in writing. If some judges dissent from majority opinion, then they are invited to put their counterarguments in writing.

As long as this institution remains, anyone can evaluate the extent to which judges have arrived at the truth when making decisions. The is because written opinions lay bare judicial reasoning. They expose errors in thought process and possibilities of judicial interest rather than disinterest. No amount of sophistry can obscure incomplete or erroneous judgment when a reasoning mind carefully examines written judicial opinion. As such, judges who fail to arrive at or act on truth have nowhere to hide when they write their arguments down. They can only hope that onlookers do not scrutinize their work.

By analyzing both the affirming and dissenting opinions in King v. Burwell, we can conclude that the majority of the Supreme Court has once again abdicated its truth-seeking process regarding the Affordable Care Act. Similar to his affirming opinion written three years ago, Chief Justice Roberts displays tortured rationale to justify why, under section 36 of the Act, health insurance sold on an "Exchange established by the State" actually means "Exchange established by the State the Federal Government."

In defense of his decision, Roberts offers various arguments involving the statute's context, design and purpose, and "inartful drafting." He also suggests that the decision is consistent with the principle of judicial restraint. His arguments are weak and at times preposterous, as demonstrated by the ease with which each of them is excoriated by dissenting Justice Scalia.

For example, with respect to the argument that the majority of the court is practicing judicial restraint in this case, it is easy to see that they are engaging in just the opposite--judicial activism. The court is rewriting the law by adding words that do not appear in the statute. As Scalia (p. 20) observes, the court's revision authorizes the IRS to collect billion$ in taxes on federal exchanges, it changes insurance prices for millions of Americans, reduces state participation in implementing the ACA, and expands the reach of the law's individual mandate.

A straightforward and wholly appropriate response consistent with judicial restraint would have been to send the law back to Congress so that it can hammer out the problems with the current statue. The legislative branch would thus be doing what it is supposed to do: write clear law--which by the Roberts majority's own admission the current statute is not.

It is easy to conclude that, similar to the case three years ago, Roberts is grasping at straws because he is interested. He wants the law to 'work' and he is willing to sacrifice the truth in doing so.

Near the end of his dissent, Scalia (p. 21) concludes as much, suggesting that because the majority of the court is rewriting law, effectively working in tandem with other branches of government rather than providing a constitutional check, in order for the health care program to work out as they hope, "We should start calling this law SCOTUScare."

Once again, the highest court in the land demonstrates how truth can been subjugated in favor of interest.