An Apparently Fair-Minded Chief Justice  — an Exercise of Jurisprudential Integrity against Run-Amok Partisanship — Perhaps only a Thoughtful Attorney Can Fully Appreciate the Interpretive Grace Contained in Justice Roberts’ Majority Opinion

© 2012 Peter Free

 

29 June 2012

 

 

Introduction — appellate court decisions require a knowledge base to properly comprehend

 

Validly evaluating legal opinions is a learned and continually practiced skill.

 

Most of the public uproar surrounding the Supreme Court’s decision on ObamaCare, yesterday, comes from people not professionally competent to criticize or laud it.

 

The key to critiquing appellate decisions of this kind is to be familiar with applicable legal precedents and the contexts in which they were created.

 

Although the Court always cites supposedly controlling previous decisions with a sentence or two (in explanation or qualification), that abbreviated practice allows individual justices to misconstrue or misrepresent what they are citing — without anyone but experienced constitutional law attorneys being the wiser.

 

Hence, my perennial insistence that a respect-worthy Supreme Court justice follow accepted rules of constitutional jurisprudence and reason in both choosing and applying previous decisions to the matter at hand.

 

Given the disrespect that this current Court has earned, Chief Justice Roberts’ integrity-bound analysis in National Federation of Independent Business v. Sebelius is worth noting.

 

 

Yesterday’s decision was an important one — but its importance had more to do with the separation of powers and the appropriately deferential role that the Court should take than it did politics

 

Lost in the shouting for or against ObamaCare was proper concern for the maintaining the Court’s appropriately deferential role in considering Congress’ previously established scope of authority under the Constitution.

 

This caveat appears to be frequently lost on the Courts’ conservative justices, who have been surprisingly aggressive (given the standards of the profession they’re in) in imposing their political views on the nation’s past jurisprudence.

 

Nothing in the conservative core group’s dissent yesterday changed that impression.  It too cavalierly disregarded the Court’s own previously announced standard for letting statutes stand, if there were any reasonably cognizable reasons to do so.

 

Chief Justice Roberts, alone among this conservative block, saw what was intangibly, but critically and institutionally, at stake in reaching the ObamaCare decision.

 

His insight likely came from a combination of temperament and position.  His previously announced loyalty to the idea of judicial integrity — once citing Justice Robert H. Jackson as an inspiration — probably motivated him in rendering an arguably fair-minded upholding of the Affordable Care Act under Congress’ taxation authority.

 

This display of judicial integrity now distinguishes the Chief Justice from his unrelievedly activist, often publicly partisan, conservative colleagues.

 

There is, in appellate law, a difference between exercising political inclination with judicial integrity and political fiat without.  Chief Justice Roberts appears to have recognized the difference, at least in this instance.  His peers often do not.

 

Note — regarding Justice Scalia’s and Thomas’ out-of-court partisan antics

 

As a long-time Court observer, I am frequently disturbed by Justice Scalia and Thomas’ public displays of determined partisanship.

 

Justice Scalia, especially, exemplifies an inappropriate regal self-righteousness in his unwillingness to observe traditional standards of disinterested judicial behavior, when in public.  Were he a lesser personage, the licensing authority would have taken him to task.

 

His disquieting public behavior does the Court’s reputation no good.  And his cavalier disregard for his behavior’s impact on the Court’s reputation says a lot about the man’s self-important conceit.

 

Brilliant, yes.  Judicially admirable, probably not.

 

Unfailing decorum at this level often goes a long way in making up for personal mediocrity.  Perception of the Court’s even-handedness is often institutionally more important than the substance of its individual decisions.

 

That Scalia forgets this aspect of being a Supreme Court justice distinguishes him from true and traditional institutional conservatives like Chief Justice Roberts.

 

 

Joining “Integrity’s Team”

 

I am sure that Justice Roberts held his nose, while affirming the constitutionality of the Affordable Care Act under Congress’ power to tax.

 

His opinion exhibited a reasonably careful application of law and precedent to a case which must have tempted the Court’s political partisans to invent reasons why Congress’ statute was unconstitutional (or not).

 

I highlight Justice Roberts’ jurisprudential fair-mindedness in this case, not because I quarrel with the unavoidable presence of politics on the Court — but because I consistently have railed against some justices’ penchant for ignoring established rules of constitutional interpretation and/or reason to get to the partisan positions they hold.

 

Bush v. Gore (2000), and to a noticeable degree, Citizens United v. Federal Election Commission (2010), manifested jurisprudence-ignoring politics on a Court that has run frighteningly amok.

 

Yesterday, the conservative Chief Justice attempted to interrupt this institution-destroying trend by returning to the more restrained interpretive principles that the Court is supposed to exhibit under its own traditions: focus, precedent, narrowness, defensible reasoning, and the separation of powers.

 

That Justice Roberts was inclined and able to do this under Congress’ taxation authority — even while reaffirming his conservative objection to allowing the federal government to further expand its scope under the Commerce Clause — is recognition-worthy.

 

 

A related aside — on the permissibility of politically-motivated disagreement in areas in which professionally honorable justices can disagree on what the law and precedent actually say

 

Chief Justice Roberts’ split with Justice Ginsberg, who would have upheld the statute-sustaining applicability of the Commerce Clause in this case, is certainly a matter on which reasonable legal professionals can disagree.

 

I have no jurisprudential objection to either outcome, even though the pair display blatantly opposed political tastes.  That one opinion accords more closely with my own does not dissuade me from intellectually respecting the other’s contradictory position.  There are an immense number of things in law in which there cannot possibly be only one “right” position, at least as drawn at the time.

 

My concern is always with the legal legitimacy of how the justices get to the positions they hold, not necessarily with their eventual resting places.

 

 

For example, here — a legitimate legal dispute over narrow versus broad powers

 

I suspect that Justice Roberts’ intentional narrowing of the Commerce Clause’s justification for federal meddling in the economy is the only conservative-reassuring way to preserve the enumerated powers restriction that the Constitution applied.

 

Justice Ginsberg’s contrary view also has merit, but for different reasons.  Hers, I suspect, may eventually prove to be wiser policy — given modernity’s centralizing exigencies.

 

 

On legal reasoning — precedent, preponderance, and supporting reasons

 

You will notice, in reading Justice Ginsberg’s opinion, that her analysis (regarding the applicability of the Commerce Clause) is more thoroughly reasoned and nuanced than Chief Justice Roberts’ or the dissent’s.

 

The core difference lies in her “liberal” tendency to recognize that one can traverse slippery slopes, without sliding to perdition — provided that one is willing to recognize complexity, nuance, and self-control.

 

My point is not that the Chief Justice and his fellow conservatives are wrong in definitively cutting off the application of the Commerce Clause, but that the reasoned thrust of the Court’s own precedents are, more arguably than not, conceptually and preponderantly on Justice Ginsberg’s side.

 

In order to upend her, the Court’s conservatives (the Chief Justice included) had to drag in a semantically too simple concept that distinguishes “active” from “inactive” market involvement.

 

Anyone with a critically analytic mind will quickly recognize the intellectually questionable certainty that these justices’ too clearly drawn distinction takes.

 

There is, however, just enough line-drawing weight in Justice Roberts’ analysis of active versus inactive market participation to legitimately make his legal point about the distinction between the two.

 

Establishing appropriate conceptual “cut-offs” regarding precedent is exactly where political differences on the Court legitimately intrude into constitutional interpretation.

 

The difference between defensible and indefensible conceptual boundary-limiting has to do with the reasonableness of the interpretation, not with its direction.  Most of us recognize when reason and fair-mindedness take a vacation and jump chasms, without accompanying evidentiary support.

 

Although I disagree with the Chief Justice’s too categorical reading of the Commerce Clause out of health care, I do not deny that precedent, semantics, and legal integrity all gave him room to do so.

 

 

The moral? — Aspiring attorneys should read Chief Justice Roberts’ and Justice Ginsberg’s opinions — they might learn something about legal integrity

 

Chief Justice Roberts’ and Justice Ginsberg’s opinions accord with the interpretive principles of the appellate tradition.

 

In Justice Roberts’ case, his analysis was drawn under circumstances in which he obviously disagreed with the political ramifications of the outcome that Integrity forced him to reach.

 

This display of professional fair-mindedness is important because, if there is one overarching value that has been lost in American culture in recent decades, it is Integrity.

 

Justice Roberts, yesterday, did his difficult bit to bring professional honor back to the profession that we most count on to display it.