JOHN ROBERTS IS MISUNDERSTOOD

For the many Republicans who feel betrayed by the Chief Justice’s opinions on ObamaCare and many other touchstone cases, whose impression is that Roberts is not the “conservative” they expected him to be, the article by Adam J. White in the November 11, 2015 issue of The Weekly Standard should be an eye-opener. See: http://www.weeklystandard.com/articles/judging-roberts_1063131.html?page=3

It is now commonplace, and not just among talk-radio hosts who style themselves conservatives, to hear Justice Roberts’s opinions critiqued on the basis of whether conservatives benefit from the outcomes of his decisions. It is almost as commonplace, among analysts who view themselves as being above the fray, to tackle the Roberts oeuvre by determining whether he generally adheres to the “original meaning” or “original intent” theories of statutory or constitutional interpretation. The salient feature of the White article is that it shows the failure of each of those approaches to identify the inner Roberts.

White’s point is that Roberts’s point is that there is no particular mode of statutory or constitutional interpretation that is necessarily the best. Yes, it should be obvious that the approach of picking winners and losers on the basis of identifying the more attractive or deserving winner (the Sotomayor method) is, in the end, a loser’s game. A bit more complex, and less-easily dismissed, are the two approaches currently in vogue: the “living document” approach that is generally favored by the political left, and the “original meaning” and “original intent” approaches generally favored by the political right. White’s view is that Justice Roberts makes a conscious effort to favor none of these approaches, and as a result he disappoints or confuses just about everyone.

White’s insight is that the essence of Robertsism is Separation Of Powers. The Chief Justice is a constitutionalist, but primarily in the sense that he believes the Court’s mission is to police and enforce the constitutional allocation of powers among the three branches of American government. Roberts hates it when Congress delegates too much discretion to federal agencies, by adopting laws that are too vague, too incomplete, and that thereby invest the executive branch with too much leeway to adopt regulations that go far beyond the apparent intention and scope of the law or even conflict with it – as in the notorious case of the ObamaCare statute. He is likewise offended when the President issues executive orders that represent de facto legislation and effectively by-pass Congress. He was willing to twist himself into a pretzel in order to find a way to interpret the ObamaCare statute as being constitutional, because he respects the authority of Congress – even though he might have been appalled, as a citizen, by ObamaCare. In White’s view, Roberts is not political; in his role as judge, he does not allow himself to prefer one outcome over another and he does not prefer less regulation to more regulation. He is neither a federalist nor a cheerleader for states’ rights. He reserves his cheers for democracy and is opposed to efforts to undermine the authority or the actions of Congress.

The Roberts approach carries risk. The risk in it, if not the fatal flaw, is exposed by the Obamacare fiasco, the possibility of a law that was only passed because the administration drafted it so cleverly as to mask its real intent – the very intent that Roberts professed to have discovered. In other words, the Roberts approach allows abuse, perhaps encourages it: if a White House can blow by Congress a law that is intended to mean (and can be laboriously re-written by the Supremes to mean) something quite different from what it appears to mean, the separation of powers will have been subverted, the will of the people ignored. Exactly the opposite of what Justice Roberts claims to seek.

From this observer’s conservative perspective, Roberts is the ideal Chief Justice of the United States. He carries no agenda, follows no particular school of statutory or constitutional interpretation, and does what he can to see that Congress, and only Congress, gets to make our laws. He is willing to consider original meaning, original intent, contemporary perspectives, history, and precedent. His mind is truly open, and he is indeed the “umpire” he set out to be, not a player. Would that we always had nine such justices.

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