After allowing my shock and anger to subside, I believe that it is now safe for me to share some calm reflections on Chief Justice and his decision. First of all, it should be clearly understood that the Affordable Care Act (ACA) decision was the Chief Justice’s decision and his alone. Everything about the ACA hung on his vote in a Court in which cases involving questions about the original intent of the framers (or amenders) of the constitution are balanced on a knife-edge.
The issue I see presented in this case is one of justice. Is our country and its judiciary fundamentally committed to the rule of law and the idea of justice? In that regard the first question is whether the Chief Justice truly believes that the constitutional power to tax covers the ACA “tax penalty” or did he base his vote upon other considerations? The second is, what is the likely effect of this decision on our form of government and the future of our politics?
Of course no other person actually gets into the mind of any judge to determine the basis upon which he or she makes decisions. Appellate court judges, like Supreme Court Justices, do have to write opinions which legally support the rulings they make but they don’t have to tell the truth or the whole truth about the basis of the decision.* The Chief Justice’s opinion contains the following quotations, to wit:
“We do not consider whether the act embodies sound policies. That judgment is entrusted to the nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions,”
and,
Members of this court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
The language of these quotes signifies the Chief’s awareness of the politics of the situation. Does he really believe deeply in the idea that the ACA is constitutionally permissible? I doubt it. Why not? Most importantly, according to reports, he changed his vote to “constitutional” very late in the process. He first voted for unconstitutionality at the Justices’ conference immediately after oral argument. At that point he voted to overturn the ACA. He voted ‘unconstitutional’ right after having heard three days of oral arguments, read and digested the record and studied in-depth the legal briefing of the parties. Then, sometime later, he moved into the ‘constitutional’ camp. This alone creates a lot of suspicion as to his motivations. Did he really discover a new point of view after the conference which he had not considered and rejected before?
In order to see it as a tax, it seems to me, that one has to believe that everyone is actually being fictionally taxed and that those who purchase conforming insurance get a 100% exemption from paying that tax. If this is true, this should have been clear to the Chief early in the process. This can not be an unexpected twist in legal thinking which may not have occurred to him previously. Here’s a quote from the Chief’s opinion, the justification for his position that the “penalty tax” is in fact enough of a tax to qualify as constitutional:
Indeed, it is estimated that 4 million people each year will choose to pay the IRS rather than buy insurance … That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating 4 million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.
This statistically based analysis is very questionable. It is questionable enough to wonder how it even got into a Supreme Court opinion. The Chief is allowing his view of the intentions of Congress to overshadow the words of Congress and the Congressmen and Congresswomen who argued about it and voted on it. What is the relevance of a statistical analysis like this? Is it true that there could not possibly be that many scofflaws to whom Congress would have intended to assess a penalty? What? There are at least that many people who fail to file required income tax returns in the first place.** Are these non-filers penalized for their bad behavior or taxed an extra amount? Non-filers are definitely punished, not taxed, for their failure. The bad behavior is the failure to file and the penalty is both monetary and potentially physical incarceration. Can a less convincing argument actually be made about the tax versus penalty question? Isn’t this especially true when the administration officials and supportive Congresspersons continue to state, even after the opinion, that this is not a TAX but is a PENALTY. The Chief’s rationale just seems a little theoretical and not exactly legally overwhelming. When viewed as very a late change of position it seems likely to be a rationalization. Perhaps not, but it reasonably creates serious suspicions.
Then why the change you ask? Is it possible that the Chief wishes to retain for the Court its lofty position in the politics of this country as the final arbiter of all important decisions. Does the Chief believe that a 5-4 vote overturning of the ACA would seriously degrade the public’s opinion of the Court and the legitimacy of its role in declaring the terms of constitutional law as applicable to the State and Federal governments and the people themselves? Is Chief Justice Roberts worried about whether it may become politically palatable for Congress to insulate the laws it makes from review by the federal courts pursuant to the authority of Article III Sections 1 and 2 of the Constitution. That is possible and it is frightening when viewed from the perspective of those of us who have seen the Chief as a straight arrow from the first. We’ve seen him, perhaps now it seems naively, as a man who stands up for the constitutional oath which he took to:
. . . {S]upport and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose.”
How could a serious and honorable man having taken this oath give primacy to the political position of the Court over enforcing the terms of the Constitution itself? This is the question. Does the Chief see his role as a man sitting astride history who must act politically to protect the constitutional prerogatives which the Court has arrogated to itself (See Marbury v. Madison) or as an impartial arbiter of the law, including constitutional law? If the latter I am content to live with the results of this decision in every respect because this is how the system was designed. Let the chips fall where they may in the event of human error. Stuff happens. But if the former and it turns out to be just another cynical example of people making political calculations in the short run which often, if not always, turn out to be very destructive in the long one then I’m afraid that this time it will be taken as a blatant affront to justice and the rule of law itself. This may be the straw which breaks the backs and the hearts of those trying to protect and re-energize the constitutional idea of limited government. This is particularly true when the one perceived as practicing the cynicism was previously revered for his extensive and demonstrated knowledge of the law and his stated commitment to the rule of law.
The purpose of the Constitution was stated by the framers in the following terms,
. . . [T]o form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, . . . .
This Constitution was written for a nation of laws, a nation dedicated to justice. Not cynical case by case justice, but a nation in which the laws are sacred and are treated that way. I, one of the naive ones, believe that if the decisions of the Supreme Court are based upon the Constitution and its founding [and amending] principles we will remain a successful law-abiding republic even if we don’t like the laws. Our dedication to justice will save us. On the other hand, twisting and manipulating the constitution in order to fit the personal or institutional political agendas of the players of the day does damage to the idea of justice and the commitment of the people to that justice. If decisions about constitutionality, like this one, are done with an obvious judicial thumb on the scales of justice we have truly gone beyond the tipping point and may actually have irreparably eroded our nation’s ideal of justice and the rule of law. Once respect for law is gone, we’re done for as a nation of laws and we will almost inevitably become a free for all democracy, a nation of men. In such a democracy, a nation untethered to republican limitations on the power of government, the might will make the right. That implies that our future will be one of great and ongoing struggles for the raw political power to impose the will of the winners upon everyone else.
*”Limitations” is an interesting novel written by legal-thriller author Scott Turow which follows the events and ideas which understandably affect the decision-making process of an appellate court judge.
**In 2001 the IRS estimated it was losing $30 Billion due to non-filers, this would be an average of $10,000 in unpaid taxes from at least 3 Million non-filers. Most taxpayers don’t owe that much so the number of non-filers is likely to be much higher as of 2012.
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