“An Umpire.” That is how John Roberts properly described the duty of a Supreme Court justice during his confirmation hearings. His rulebook? The U.S. Constitution. Thank you sir, may I have another!
No, you may not. Now that John Roberts is Chief Justice Roberts, he apparently thinks it’s the umpire’s job to actually play the game—take a few cuts, run the bases, and score. Never mind that the Constitution doesn’t allow an umpire to play, Chief Justice Roberts inserted himself into the game and homered for the wrong team. Recognizing that President Obama and the Democrat Congress couldn’t play the game Constitutionally, Roberts literally changed the statute before him to make it conform to the Constitution. He magically converted a penalty into a tax, thereby changing the language of the law and the definition of what a “tax” really is.
What would happen to the game of baseball if umpires, recognizing the ineptitude of a team, began favoring or playing for it? The integrity of the game would be lost. Unfortunately, this is not a game. The future of liberty in history’s greatest nation is at stake.
When the decision came down on Thursday, I was at a meeting attended by hundreds of attorneys including former Solicitor General Paul Clement, the very man who argued that Obamacare should be overturned before the Supreme Court in March. While disappointed with the decision, the very impressive Mr. Clement succinctly highlighted the legal positives scattered throughout the opinion. Other attorneys noted the potential political upside for the Republicans in November. One attorney even said that Roberts had brilliantly planted a booby trap in the opinion that would ensnare government growth because any future mandates would now have to be characterized as a tax, which would be politically toxic.
That all may be true. Sometimes we get good results from bad decisions, and I hope we do. But that doesn’t change the fact that an umpire appointed as a supposed conservative didn’t accurately call balls and strikes according to the Constitution, but actually suited up to grant the losing team the victory.
Some at the meeting have known Justice Roberts personally for decades. They claim he is a man of the highest personal integrity, which I do not question. Given that, why would Roberts do this? Many suggested that Roberts wanted to bolster the respect and legitimacy of the court by debunking the perception that the court rules politically—five Republican appointees versus four Democrat appointees.
If that’s the case, he’s actually delegitimized the court. It’s misleading and self-defeating to consider politics to prove that we are not considering politics. More importantly, by Roberts’ own admission, political considerations of any nature are not the job of the court. Just like umpires should not allow fans to influence their calls (if the runner is out, call it that way!), judges should not allow the public or the political establishment to influence their calls. If the law is unconstitutional, then call it that way! After all, a justice’s oath is to the Constitution, not to the President, politics or any poorly conceived law.
Some might say that Justice Roberts was simply exercising the judicial rule of avoidance—finding other grounds in the law for constitutionality to avoid overturning it. After all, conservatives do not believe in judicial activism. If a law has been duly enacted by the people through their elected representatives and has elements in it that can salvage its constitutionality, then the court should uphold it. I agree with that principle.
But that’s not what Roberts did. As forcefully asserted by Ken Klukowski, another attorney at our meeting, Roberts didn’t find anything in Obamacare suggesting that the mandate to buy health insurance was intended to be a tax, which could salvage its constitutionality. In fact, the bill’s authors, and even President Obama himself, explicitly claimed it was not a tax (and shamelessly are still doing so).
Obamacare never would have passed as a tax (it barely passed when it was fraudulently advertized to be revenue neutral!). But that didn’t stop the Chief Justice from, in effect, rewriting Obamacare to make the mandate a tax. One man alters and then imposes a law on over 300 million Americans. If that’s not judicial activism, then nothing is!
Chief Justice Roberts should have joined the dissent to overturn the law, while explaining to Congress and the President that they could start over by passing the mandate as a tax (assuming one can accept the tortured reasoning that a tax is something you pay when you don’t buy something). There is simply no known justification for what the Chief Justice did.
“Well, there are many legitimate philosophies of judicial review, you say.” Nonsense. There is only one type of judicial philosophy that doesn’t result in tyranny—a conservative philosophy, which conserves the language and intent of the law to see if it conforms to the language and intent of the Constitution. When a justice takes it upon himself to either change the law or the Constitution to pretend the two conform, we the people no longer govern ourselves. We are, instead, governed by unelected justices who rule over us by judicial fiat. Until conservative justices have the courage to stand for what the law actually says as much as liberal justices have the audacity to stand for they want the law to say, we cannot govern ourselves or rely on the courts to guard the Constitution and our liberty.
In baseball, no one wants to see the umpire blow a call that decides the game. That is exactly what Justice Roberts did on the Supreme Court.
But enough about the Court. We’re not going to solve anything by continuing to blame the umpire. As in baseball, we’ve got to overcome blown calls. One great beauty of America is that we the people are the ultimate umpires. It’s now time for the American people to throw out the bad players and work tirelessly to put the right players on the field this November. That’s the only way to overcome this massively blown call.
Frank Turek is coauthor of I Don't Have Enough Faith to be an Atheist, and the author of Stealing from God: Why atheists need God to make their case. See more of his work at CrossExamined.org.