It is easy to forget, and so it is important to remember, that reasonable and conscientious people – including judges – sometimes disagree, reasonably, about things that matter.
In recent days, several commentators and critics of the Roberts Court seem to have forgotten this fact, perhaps because they have been confronted with the unsettling realization that what they confidently, even smugly, took for granted might be wrong.
Former House Speaker, California Rep. Nancy Pelosi spoke for many when she dismissed with an “are you serious?” questions about ObamaCare, aka the Affordable Care Act’s individual mandate, which no doubt was and is easier than engaging the strengths of the other side’s positions and the weaknesses of one’s own (or reading the legislation).
Now, as the end of the Court's term approaches and after in the aftermath of several days of tough questioning and powerful counter-arguments before the Court in March, the Act’s supporters are nervous.
Some are turning on John Roberts, the Chief Justice of the United States, and engaging in an unattractive and unworthy condition-the-environment campaign to pre-delegitimize a feared ruling against the Act. Such a ruling, they say, would and could only be a partisan, divisive, and “activist” one, one that would undermine the Court’s public standing and tarnish irreparably the Chief Justice’s reputation and record.
This effort to influence the Chief Justice through pre-fabricated outrage is misguided, troubling, and transparent.
Let’s concede, for argument’s sake, that intelligent jurists who take seriously their oath and obligations could conclude that the individual mandate is a constitutionally permissible exercise of legislative power by Congress. After all, for the last seventy years or so, with a few exceptions, the Court has deferred to Congress about the reach of this power. The individual mandate is novel, maybe even unprecedented, but – one could argue – that does not mean that it’s unconstitutional.
However, the Chief Justice’s anticipatory accusers claim a lot more than this. They insist – indeed, it seems they cannot imagine that any intelligent and appropriately trained lawyer could think otherwise – that it would be not only incorrect, but illegitimate, to conclude that the mandate goes too far and that it is the Court’s duty to say so.
The accusers are wrong.
To understand why, take a step back to junior-high civics: Our Constitution is not only a blueprint for our national government, it is also, and fundamentally, an act of “We the People” that grants, separates, allocates, and limits that government’s power. The national government has, but only has, the power that the Constitution gives it, and Congress only has the powers that are set out in Article One of the Constitution. These are expansive, true, but they are not infinite; their limits and boundaries are not always clear, but they do exist. And, one of the powers the Constitution gives to the Court – one of the duties that it imposes on the Court – is, in appropriate “cases” and “controversies,” to identify and enforce those limits.
The critics warning the Chief Justice to toe their line charge that striking down the mandate would be “activist,” but this epithet is easier to deploy than to define. As Justice David Souter once observed, “judicial activism is when the court rules against you.”
Almost everyone agrees that Justices should not substitute their preferences for the law and that Congress and the president are entitled to respect and deference by the Court, but hardly anyone believes that the Court should never invalidate federal statutes or executive actions.
We should not want and praise a Court that strikes down government actions we think are bad and upholds ones that we like, but rather one that invalidates actions that actually and pretty clearly unconstitutional, whether we like them or not, and upholds, interprets, and applies the rest.
Thoughtful and conscientious people disagree about whether the Constitution, correctly understood, authorizes Congress to enact the individual mandate. This question is interesting and hard, but this much is clear: It is wrong to imagine that the answer is obvious and that only low politics and hackery could explain a Court ruling that the answer is “no.”
The Chief Justice took an oath to uphold the Constitution – to safeguard its structure, enforce its boundaries, and police its limits -- not to construct crowd-pleasing unanimity at the expense of the right answer, whatever it is. That’s what We the People should want him to do and – I have no doubt – what he will do.
Professor of Law and Associate Dean at the University of Notre Dame School of Law.