Saturday, June 30, 2012

Justice John Roberts: Supreme Catalyst

Last week, closing in on his seventh year as Chief Justice of the Supreme Court, John Roberts was the deciding vote that enabled the Affordable Care Act, the Obama administration's key accomplishment, to stand.

For a minute there, it looked like uber-conservative, Federalist Society member Roberts was in bed with his Democratic colleagues, but only for a minute. Instead, he was taking the back door into the court after a romp with some liberals on the bench. So, despite any illusions to the contrary, the judge who voted in favor of Citizens United, and voted with conservatives on other high profile issues like abortion, civil rights, and gun control, was never in any danger of jumping ship.

He may flirt with the Democrats, but John Roberts is not just Chief Justice, but may also be thought of as the Supreme catalyst, and like the president who secured his nomination to the bench, the Supreme Catalyst.

Let's not forget, there are many ways of winning an argument. The easiest way, of course, is to deck your opponent. A more clever way is to relieve your opponent of any ammunition he might wish to use against you. Chief Justice Roberts disarmed not just his opponents, but his observers by taking the second route.

All those who waited with baited breath, or should I say "bait and switch" breath, were baffled upon hearing the highest court in the land rule that the individual mandate to acquire health insurance was constitutional. And, bait and switch it was.

Anyone even remotely interested in fine print has to ask why what will long be regarded as the Roberts' ruling, one that will long distinguish what has quickly become the Roberts' court would, on the one hand, mandate that individuals carry health insurance while simultaneously letting states decide whether or not they want to accept federal funds to expand their Medicaid eligibility criteria.

John Roberts was immensely crafty in how he managed to come across as fair-minded, even liberal with this ruling, causing those who remember that then-Senator Obama voted against his confirmation to scratch their heads. Roberts acted like the smart wife who, when being chewed out by her husband about her spendthrift ways, smiles and slips his credit card into her back pocket.

Don't be deceived. While it may look like the Chief Justice sided with the Democrats on the court to become the swing vote in the ruling the legitimized the Obama administration's health care legislation, it was really Judge Roberts' deft way of following another Supreme Court judge, Rehnquist, in affirming state's rights.

With this ruling, Roberts is playing both sides against the middle, standing with the liberal wing of the court while reinforcing the conservatives on the bench by pushing back against any interpretation of the Commerce Act, a constitutional clause giving Congress authority over interstate commerce.

The constitutional power to regulate commerce with foreign nations, among the states, and among Indian tribes, which dates back more than 200 years, Chief Justice Roberts asserts, does not give the federal government the right to impose an individual mandate. To do so would be to give Congress, as an article in Slate reports, "new and potentially vast" power.

To the contrary, as Chief Justice Roberts sees it, the constitutional clause that was intended to give empower Congress should now be used to give more authority to the states, and rein in Congress's power.

Traditionally, the interpretation of the Commerce Clause has been up to the Supreme Court. In his last days on the court, Chief Justice Rehnquist saw the clause as a vehicle for asserting the supremacy of states over Congress when it comes to regulation, and enforcement of existing legislation.

But, why should we give a fang about an obscure constitutional provision that regulates commerce, and how it is interpreted? Why should that matter now?

At a time when other ultra-conservatives, and not so ultra-conservatives, are looking to overturn the constitutional right to a safe and legal abortion, and hand the Roe v. Wade decision over to the states, this big thumbs-up for state's right cannot be overlooked. Likewise, at a time when it is virtually impossible to pass any meaningful gun control legislation, who better than the National Rifle Association to rejoice in Chief Justice Roberts' view that it would be dangerous to let Congress, i.e. the federal government, regulate interstate commerce?

And, Slate is right when it suggests that "the health care law was, ultimately, a pretext." The real meat and potatoes issues are yet to come, and they include Roe v. Wade, gun control, voter's rights, and affirmative action.

Thanks to Judge Roberts' revisionist reading of commerce such that state's rights trump federal authority, a state won't be mandated to accept the Affordable Care Act Medicaid expansion provision such that 17 million more people might be eligible. The law might apply to individuals, but it doesn't apply to states, according to the Chief Justice.

And, as the New York Times notes, thanks to the Roberts court endowment of consensual rights to the states, millions of Americans will now find themselves adversely affected by this decision as several states have already said they will reject this Medicaid expansion program.

So, if you're poor, uninsured, and happen to live in a state that refuses to participate in the new health care law's expansion of Medicaid eligibility, you will be hurt by the interpretation of the Commerce Clause that allows states to opt out of Medicaid expansion.

As you know, appointments to the Supreme Court are lifetime appointments. Chief Justice Roberts is a young man. He's only 57. Should there be a constitutional challenge to Roe v. Wade on his watch, you may yet live to see the day that a federal ruling granting a woman the right to a legal, and safe abortion is turned over to the states to decide which will mean that the poorest women, those unable to travel from state to state, will no longer have access to a legal abortion.

Similarly, this court 's interpretation of this constitutional clause renders it all but impossible to enact future gun control legislation on the federal level, laws that won't allow states to opt out, which plays directly into the hands of the gun lobby. The Roberts' federalist position also opens the door to neutralizing governmental regulation of tobacco, as well as opening the door to revisiting affirmative action laws, thereby overturning federal precedent..

Make no mistake, with the way he positioned himself on the court with this ruling, John Roberts isn't engaging in rhetorical flourish, but covert judicial activism, the kind that poses a clear and present danger to federal regulation of alcohol, tobacco, and firearms.

And, while many choose to see this as a victory for the Obama administration, it is an even greater victory for the NRA as the Chief Justice's interpretation of a provision in the Constitution that pertains to commerce reinforces the regulation of gun sales by the states, and essentially factors Congress out of the equation when it comes to gun control. The ultimate objective is to diminish Congress's authority in the name of smaller government, a goal that can only lead to greater disenfranchisement and political chaos.

By what amounts to a clever sleight of hand, Chief Justice Roberts baffled Democrats and Republicans alike last week by coming across as an independent-minded, free thinking judge who will align himself with what he perceives as law in a non-partisan way. But, in reality, he has exposed himself for what he truly is, a born again federalist, and one whose opinions may, in future, mitigate against federal enforcement not only of health care, gun sales, and abortion rights, but yes, voting rights, and civil rights, too