Friday, June 29, 2012

Chief Justice John Roberts is still one of us.

by Gene Wisdom

Gene Wisdom
The recent Supreme Court decision upholding Obamacare is obviously distressing to us conservatives.  The linchpin of the “progressive” agenda of President Barack Obama, this legislation met and fed a firestorm since it was first introduced.  It has provided arguably most of the fuel to the Tea Party and the conservative electoral gains (because for most of us Republican gains are meaningless except insofar as they serve conservative positions) in 2010.   

Obamacare threatens our Republic in a myriad of ways, least of all the disaster that it represents financially to our country, in terms of dollars lost in that toilet spiral that is the federal budget.  It is, as we all know by now, a government power grab of one-sixth of the economy, and much of the slump we see in the economy is due to the uncertainty and fear employers have over the impact of that law.  And it is but the first step toward the goal State Senator Barack Obama envisioned years ago of a single payer health system—national health insurance.  When we hear or speak the word “socialism” in regard to this President our first thought is Obamacare. 

Because of the threats and deleterious effects of Obamacare we conservatives had placed great hopes on the case as it wound its way to the Supreme Court.  Serious Constitutional issues were at stake: misuse of the Commerce Clause, the extent of the taxing power, not to mention that health care is nowhere listed in the Art. II, Sec. 8 enumerated powers of Congress.  

If there is a benefit to this outcome, a silver lining, it is that it has animated the conservative base.  To be overturned now will almost certainly require a 60-vote filibuster-proof conservative Republican majority in the Senate and of course hanging on to the current lead in the House.  It will mean consecutive Republican—rather, conservative, Revolutions in Congress, not to mention re-taking the White House.  Conservatives know that and will renew their fights now in all of these battles.  Where I had made several small contributions to conservative candidates to the House and Senate around the country in the last election I have not done so yet in 2012.  Now I will. 

One product of this decision, however, I believe, is misdirected.  It is an animus aborn toward Chief Justice John Roberts.  To be certain, he has lent his vote and voice to a terrible and possibly disastrous decision.  Spitfuls of venom have been directed at him from our side, labeling him a turncoat to conservative hopes, and saying that we were misled that he would be a conservative Justice. 

Conservatives would do well to ponder his record to date.  Before his appointment to the Supreme Court, while a member of the D.C. Circuit, Roberts was part of a unanimous panel in Hamdan v. Rumsfeld which upheld the constitutionality of the military tribunals passed by Congress to try terrorism suspects.  In Gonzales v. Carhart (2007) Roberts voted with the majority to uphold the constitutionality of the Partial Birth Abortion Ban Act.  He is most often on the same side of important issues as Justices Scalia, Thomas, and Alito.  

It is time for conservatives to step back into character and reflect.  While I am very disappointed in Chief Justice Roberts I am not angry with him.  I believed him to be a man of integrity and I don't think he suddenly sold himself out in the side he chose in this.  I believe he is simply in error.  A grievous error to be sure, but not a wound to his character.   

One of the undergraduate courses I am most glad I took at Jacksonville State University was in Constitutional Law (actually one in Criminal Justice; and two in Political Science, the instructor a conservative and avid reader of National Review).  Those courses taught me that there are often two defensible positions on Constitutional questions.  That doesn't mean that both are right but only that one can reasonably find support in the Constitution for oftentimes opposing positions.  It is up to sincere and thoughtful Justices to search the Constitution and the Founders for the correct position.  It is not always an easy search.  

Two examples that I quickly think of are (1) Term Limits v. Thornton (1995), in which liberal Justice Stevens made a strong originalist argument against the federal term limits law, and Clarence Thomas, whom I deeply admire, wrote the dissent.  I found myself agreeing strongly with Stevens; and (2) another case (I think it was Kentucky v. King, 2011) in which liberal Justice Ruth Bader Ginsburg wrote a lone dissenting opinion (Alito wrote the opinion for the majority) against no-knock entry.  I believe the other eight were wrong. 

All that to say that reasonable minds can differ and reasonable minds may also err.  Although a very major and consequential case to do so on, that is all I believe that Roberts has done.  Have no fear, conservatives, and be of good cheer.  Roberts is still one of us.  

Gene Wisdom is an Alabama native but has lived in the Nashville area since 2007. He, his wife Vicki, and their dog Savannah live near Nolensville.  Gene is a conservative activist and leads the Conservative Fusion Book Club.

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  1. It is fascinating that Gene Wisdom offers, in his labored prose, no actual defense of the Chief Justice's “differing and reasonable” thinking in his disastrous opinion in National Federation of Independent Business vs Sebelius and Florida vs. USDHHS cases. Wisdom does not mention the truly tortured and demented assertions Roberts offered regarding the constitutionality of the taxes/not-really-taxes of Obamacare. Wisdom says these cases were filled with "serious Constitutional issues" of the Commerce Clause, and yet never mentioned that the screamingly obvious choices for a true conservative or originalist were simply evaded by the cowardly Chief Justice. Wisdom does not mention the trenchant and obvious criticisms of Roberts' pussyfooting in the concurrent opinion of Justice Ginsburg and the dissent by Wisdom's own hero Justice Thomas.

    No, the disastrous moves of the “conservative” Chief Justice are supposed to “sincere and thoughtful” because some obscure National Review fan told the undergraduate Wisdom that multiple interpretations of the clear language of the Constitution is possible. Well this amiability of Mr. Wisdom makes him a nice guy, but it also gives cover for Roberts to destroy the meaning of words conservative, originalist, and constitution.

    And what is the upshot of Wisdom’s post? It is that Wisdom objects, in passive voice, to the unnamed harsh and real mean criticism of the fool Roberts. Wisdom offers a bucket of red herrings to show that Roberts is “one of us”, so as to distract us from the fact that when it really really counted, when the true guts of limited government were on the line (you know, as Wisdom opined, “serious constitutional issues were at stake”), Roberts decided instead to “grow” in the estimation of Nina Totenberg, and “save the court” by splitting the difference.

    Wisdom may be a nice guy and invite the phoney Roberts onto “our side”, but that is at the expense of seeing the basic issues clearly. In contrast, here is the truth from a conservative who does not pussyfoot around:

    It is time “our side” to become conservatives and stop apologizing for Republican politicians--especially Republican politicians in robes.

  2. I could perhaps take Anonymous more seriously if he had actually read the whole piece. Had he done so he would have seen in the second paragraph my statement that the decision is disastrous. And as time passes we're beginning to see that it was even worse than many saw at first. Even some of those who favored Obamacare's passing are having second thoughts. Had they read it before they passed it maybe they would have opposed it rather than supporting the President.

    And yes, there are often conflicting views of the Constitution (that's why many cases make it to the Supreme Court), even among originalists. But, as I said, the Justices should be looking to the Founders/Framers in reaching their decisions and not consulting their whims. Anonymous might try reading more cases, that is if the Justices' prose isn't too laborious.

    I do concede that I was too quick to come to Roberts' defense. The decision and its consequences aren't the stuff of a conservative. Some defenders, even conservatives, have defended the Court's opinion in limiting abuse of the Commerce Clause. To me, however, it was a bait and switch: what they took away from Commerce Clause abuse they added to potential abuse of the taxation power and to the powers of the IRS. While Roberts is still not a Ginsburg or a Breyer I don't expect a conservative to "grow" or split the difference like Kennedy.

    As we learned about Roberts possibly switching his position I soon realized I was too quick to defend his integrity. It smacks too much of trying to placate Nina Totenberg and some law school professors and is not the stuff of a conservative Justice. As I said, reaonable (and even conservative) minds may differ and err but on this case truly conservative Justices had one course and Roberts didn't take it. I was wrong and should not have rushed to his defense.

    Gene Wisdom

  3. Gene Wisdom wrote:

    “If there is a benefit to this outcome, a silver lining, it is that it has animated the conservative base.”

    Are we to read into this that the Chief Justice, unlike the dissenting Justices Thomas, Scalia, Kennedy, and Alito, did evade his responsibility of defending (or at least ruling on) the Commerce Clause, but hey, no foul, because the implementation of Obamacare will inspire Republican electoral victories? Is Wisdom offering us a serving of the usual Neo-Conservative Hegelian “cunning of history” duplicity? Or is Wisdom offering us another weak apology for Roberts?

    And how did this “silver lining” work out in 2012?

    Does Gene Wisdom really believe that had voters somehow defeated Obama that the “reasonable minds” of “one of us” Republicans (such as the slippery characters Romney, Ryan, McConnell, Newt, or the big statist Santorum) would have effectively implemented a proper reading of the Commerce Clause?

    Over many decades New Deal Progressives and their “reasonably” minded Republican friends have claimed that the Commerce Clause is the “Everything Clause”. Likewise, in an attempt to seem “reasonable” Wisdom is making American originalist jurisprudence an “everything” doctrine.

    1. It is simply amazing the twists, turns, evasions and inventions one can come up with simply to make and keep up an attack. G'night, "Anonymous".

      Gene Wisdom.

  4. Here we are with another Roberts Court decision, King vs Burwell. Not only is a tax not a tax, but a State is just a state, depending what conservative US Supreme Court justices think the meaning of IS IS.

    Good job, Conservatives. To quote Gene Wisdom, "It is simply amazing the twists, turns, evasions and inventions one can come up with..." to apologize for unprincipled people.

    At least Roberts apparently was not REALLY a TEENAGE COMMUNIST Muslim, like Obama, eh? (That was sarcasm, btw.)


    Stephan Kruiser got it right at PJ Media:

    Love Her or Hate Her, Ann Coulter Warned Us About John Roberts 10 Years Ago

    which is similar to the Rosie Gray essay I linked to above:

    My overall point is that while some "conservatives" were pushing books "proving" that Obama was dumb commie college student, other conservatives, real conservatives, were busy looking for fools and weak links in the conservative ranks. For a long time Ann Coulter has been too meanspirited for the cold corpse that is the National Review, because she is principled, unlike the sellout Roberts and his defenders.

    To be fair, however, thirty years ago the National Review had some funny cartoons along side its usual bland, alzheimerish Reaganism.