So shut up, the rest of you. If you had any dignity or smarts, you’d be thanking the Chief Justice for being the bestest Justice of all, showing commendable judicial restraint in saving the President’s signature legislation.
— or so argues political scientist Carson Holloway.
Here’s my brief reply: yes, the power of Congress to tax has always been vast. But it has always been constrained, both by the type of tax, and by it being a tax on something — with “inactivity” not being considered a thing. Too, Congressional tax bills have traditionally been passed as tax bills; and that’s so we, the governed, can see what it is exactly our representative officials are doing. By working hard to save the legislation, Roberts wasn’t showing deference to the legislative branch; he was caving too it — and for reasons he himself has intimated, in a different context, are necessarily political: John Roberts believes in defending the institution of the Court, and he believes this is more noble a motive than ideological consistency.
We know this because he’s said as much.
Again, for John Roberts to rule the penalty a tax, he had to disregard the legislative history; disregard the public statements made by the legislators; disregard statements made by the President; and conclude that, in order to show deference to the legislature, he would rewrite their law for them, then ascribe that rewritten law to them. Which is what, from a linguistic and hermeneutic standpoint — and allowing for legal convention — he did, turning what the legislature wrote and otherwise signaled was a “penalty” into a “tax” specifically for the purpose of supposedly showing deference to those whose text he just completely usurped and rewrote.
Such arrogant paternalism is nothing more than judicial activism. And if that’s “conservative” jurisprudence of the highest order, we need to reject conservative jurisprudence, as well. Holloway seems to believe that because conservatives reject activist courts that overturn legislative will based on penumbras and willful misreadings of the Constitution and applicable precedent, they should therefore rejoice that a SCOTUS Chief Justice has gone out of his way to save the work of a legislature. Failure to appreciate this most conservative of gestures, argues Holloway, points to a kind of hypocrisy among those supposed constitutionalists now most critical of Roberts.
Sophistry. Bathed in a false equivalence. Rinsed in relativism. Because activist “textualists” and adepts of a “Living Constitution” play games with the texts of legislatures isn’t an excuse for conservatives to do the same — even in the service of a largely conservative ideal such as judicial restraint.
Roberts rewrote the clear meaning of the text before him; and in fact, he even noted that he had to strain to provide the law with the reading he gave it.
Think about that for a moment. Because what’s he saying, almost explicitly, is that he knows it wasn’t meant to read as he read it. Or to put a finer point on it, he knows the text wasn’t intended to mean what he strained to make it mean in order to save it.
It’s one thing to show deference to a legislature. It’s another to fail to rebuke them for failing to do what they set out to do under the Constitution or precedent — and instead rewrite the law for them.
John Roberts may think that what he did was show commendable restraint; but what he actually did was violence to the text, and in doing so as obviously and as baldly as he did, he has given license to other courts to follow his lead, creating a now more institutionalized (and supposedly conservative) rationale for legislating from the bench.
All of which is predictable in a society that has adopted incoherent linguistic assumptions and developed them into a very complicated form of legalized (and putatively “democratic”!) intellectual theft.
How you get there matters. And it’s time real conservatives and constitutionalists accept that fact — or else they can continue to find themselves disappointed when one of their own begins to overthink his role as jurist and not have a coherent linguistic grounding in interpretation to fall back on.
****
update: (with thanks to serr8d for pulling this particular quote)
Argues Holloway:
Dishonesty in how individual members chose to present the law to the voting public is a form of political misconduct that calls for a political remedy: namely, voting them out of office and repealing the law.
Very conservative sounding, no? After all, legislatures are allowed to pass silly laws, just so long as they are constitutional. Roberts showed as much in his (at the time infamous, and, to the left at the time, proof of his “extremism”) french fry ruling.
But pay attention to the circularity of the “thinking” here by Holloway (and, if he’s to be believed, Roberts himself): Roberts takes what was written and voted on as a penalty, turns it into a tax, and Holloway berates the legislature who wrote and voted on a penalty (in order to get around creating a new tax) for secretly issuing the new tax that was itself not a tax, and didn’t become a tax until Roberts made it one. As proof of Roberts’ staunch and principled and commendable judicial restraint.
Ludicrous. And so far as remedies go, what’s our remedy for removing Roberts from his post for his judicial misconduct?
Let’s put Holloway on a stage next to Scalia and have them hash this thing out. I mean, who are you going to believe — a Supreme Court justice who wrote a withering dissent that obliterates the ‘arguments’ (more like excuses, if one is honest) of the “let’s tax breathing!” crowd, or a guy who wrote a book about the Pope.
You mean, those same voters who installed the liars in the first place are now supposed to realize the error of their ways and recant, remove the liars from office? After they’ve been rewarded by those same looters with a nice new entitlement prize paid for by stolen funds stripped from the pocketses of those evil rich bastards who are evil and rich? That’s the way it’s supposed to work in our Obama-sanctioned newly-polished far-LeftLibProggLand, Carson Holloway?
(A tiny, tiny point needing clarification: Holloway used “Roberts’s” rather than “Roberts’ “. Is that correct? I’d’ve used the latter.)
fellow Harvard trash social retard Mitt Romney sure has been quiet about his pal John Roberts’ unfortunate tendency to inappropriately spooge all over the constitution in public
it might could be an intentional strategy on his part I’m not sure
The subtitle (or heading) doesn’t exactly put a good foot forward, using “apolitical” [“The Supreme Court should be an apolitical institution . . . “] where it most likely means non-partisan. Unless the writer of the headline somehow means apolitical (a rock sitting on the ground, for instance, is apolitical — living human beings are not), which would put that first foot in another light, advertising truthfully the imbecility of the ridiculous writer. But how can a ‘political scientist’ know so little of the meaning of politics?
Listen to the circularity of the “thinking” there, serr8d: Roberts takes a penalty, turns it into a tax, then Holloway berates the legislature who devised a penalty (in order to get around creating a new tax) for secretly issuing the new tax that was itself not a tax but a penalty, and didn’t become a tax until Roberts made it one.
So, then. What’s our remedy for removing Roberts from his post?
There’s a reason I can’t get an audience outside this blog, even on the right.
I just wish I knew what it was.
Serr8d. It’s up to the most recent style guide. It’s changed several times in my lifetime. Chances are he’s more up to date than am I — or at least, the editors are.
Roberts can suffer no penalty that we can inflict on him. But he can be rewarded with front-page NYT praises and plenty of new Georgetown fetes given by newly-appreciative leftists. And who knows? he might get a chance to take another look at Citizens United, teaming with Obama’s forthcoming new appointees. Maybe he can then write a Charles Johnson-esque “Why I left the right”.
Oh, wait. That’s what he’s already done!
Well, there’s his problem.
You know, I have a degree in that shit, but if someone were to refer to me with those two words I’d want to sue them for slander and, once my lawyer had laughed me out of his office (after all, he didn’t sue me for calling him a lawyer), challenge them to a duel.
Given the status of opinion in that old saw about their ubiquity, it strikes me as both appropriate and odd that the left would make all theirs the automatic equivalent of reality.
The assholes.
“Roberts may have rewritten the constitutional rationale for the law, but it is hard to see how the law itself was rewritten when it will operate the same in practice no matter what he said about it.”
Holloway seems to have forgotten how to use “. . . for the purposes of . . .” for the purposes of [whatever sleight of hand is desired]. We haven’t forgotten to notice, more’s the worse for him.
what purpose can Carson Holloway’s lurid fetishizings of the hyper-political Roberts court possibly serve?
Not even he’s buying what he’s selling – he’s just pulling a narrative out of his ass John Roberts-style.
I think most people would say that if the Roberts court needs so much defending then Roberts needs to get off his Harvard trash ass and defend it.
[laughs]
Holloway used Roberts’s rather than Roberts’
Holloway is correct. You put the apostrophe after the S when pluralizing a plural. The apostrophe comes before the S when it’s a contraction of is and when it’s a possessive: the S at the end of a proper name is irrelevant.
UNLESS it’s the possessive for the name of a famous historical figure: Moses, Jesus, Sophocles. Then it’s “Moses’ staff,” “Jesus’ sermons,” “Sophocles’ rhetoric.”
Written English is extremely vexatious, which is why I’ll never be out of a job. :D
Erratum:
When “pluralizing a plural” should read “when making a plural possessive,” e.g., “the customers’ complaints.”
Everyone knows that when you pluralize a plural, you use “es,” e.g., Robertses, spiderses, Hobbitses.
Like I said, it changes, and keeps style guide writers and pedants in business.
More David Brock to me as CJ is in a whole ‘nother class of crazy.
Pluralizing plurals is illegal in Alabama.
Pedants? Am I being paged?
I’m going to get yelled at again… I actually had a whole half an email drafted to Jeff last week posing the question “Is Roberts the most “conservative” Justice?”
This is really close to what I was saying the other week. Roberts, as a small “c” conservative, is going to look to uphold a law rather than knock it down. The legal beagles on our side basically ignored the Tax power argument, not thinking that the guy who repeated “stare dessication” a full million times in his confirmation hearing would uphold the law based on how the law would be implemented and how the government’s counsel argued it in court . The “penalty” is a tax in all but name, and the government claimed that all Commerce Clause nonsense aside, they could do what they wanted under the tax power anyway. They’ve done it before… licenses, surcharges… all sorts of shit gets written into the tax code as “not a tax” but are upheld under the tax power. If it looks like a duck, barks like a duck, but you call it a cat, isn’t it still a duck? Didn’t we once have a discussion here about unreliable narrators, liars, nonsense and intent?
Roberts thought the label “penalty”, given the history of the legislation and the oral arguments, not to mention precedent, masked a tax. I, personally, thought it was a pretty clear argument, especially given the dissent which was pretty fucking poor in comparison. Almost like they had the decision written in advance and then got smacked with the second argument like the kid with the answer key who didn’t see the essay coming.
Randy Barnett and friends fell for a statue of liberty play. If they had invested in the tax power argument the way they did the commerce clause, this may not have happened. At the very least it would have been much more clear that the ACA is, in fact, a MASSIVE tax increase. The “penalty” was written as a tax into the tax code, it’s logic was based on a state tax, it was designed to collect revenue for the government, will be based on AGI and reported on your income tax return, and collection will be enforced by the IRS. Roberts saw the two arguments as equal, but one did not cancel the other. He’s right, say I assert that I am a great lover because I have a big dick and a long tongue. It may be observed that my huge member doesn’t help that argument given my premature ejaculation problem, but with my nine-inch long tongue I can eat pussy for days, which will support that argument, even if some people think that’s cheating. Given Robert’s stated preference to try and resolve Constitutional questions to the government’s advantage, he probably likes eating pussy and we all should have seen this coming.
Thus, my previous stated belief that we don’t need any more fucking “conservatives” on the court, we need radicals and Libertarians. An “originalist” wouldn’t help either, because an originalist will still have precedent to deal with, and given that the “license tax” precedent is 180+ years old, the tax power is a tough one to deal with.
and I can’t even “use” commas correctly, please don’t pick on my apostrophie’s
(I used “to” make signs for a living)
We may as well write “the Constitution is a joke in all but name”, for all of that. ‘Cause it is, or has become.
Yup.
From the Jefferey Lord Chamberlain post:
Don’t that last bit sound familiar?!
We have the tatters of the Bill of Rights that still hold a few of them back, but that won’t last long.
Oh, link.
Yes, LMC, I know what you were arguing last week. You’re wrong, and so was Roberts.
It is not commendable to uphold a law you have to admit you’re reading in a way not ostensibly intended by those who passed it, in order to save it. To do so is to act as a Daddy and /or a King. Neither of which is your job. Intentionalism within the conventions of the court require that texts be taken at close to face value. In Roberts’s case, because he knew that the legislature passed this as a penalty, he had no cause to “interpret” it any other way: he knew what the law said, regardless of how the legislature wanted it to function, regardless of what their secret motives may have been. The fact is, the Congress figured out a way to get around calling what they wanted to do a tax. And the case should have been decided on their decision to do so. Roberts didn’t need to interpret; he simply needed to rule.
Simple as that.
Having said that, if you go back in my archives you’ll see that I’ve made a similar claim to the one you are (correctly) making here: that “conservative” justices (as opposed to constitutionalists / classical liberals) are too deferential to stare decisis — that is, the decisions made wrongly by previous courts need to be respected so that the wrong decisions they make will stand, and collegiality and decorum and the reputation of the Court rein supreme. Pardon the puns.
Yes, it does.
As well among the other echoes there Lee, this one — “They are different in different men at different times.” — strikes me as distinctly Hegelian. Historicist. But I know you’re aiming at another.
Further, I mentioned Roger Taney myself, either the day the decision came down or the next, remarking something to the effect that I didn’t believe Taney was thinking to himself as he crafted his Dred Scott decision “Here, let me kick off a Civil War, what say?!”
And the case should have been decided on their decision to do so.
I believe it was. Roberts says that congresses decision to disguise the tax by using the label “penalty” does not turn it into something other than what it is. By labeling the tax a “penalty” congress avoided political scrutiny, but opened the tax to challenge in the court before any payment was made. Congress has done this before and was successful against challenge. The government stated in oral argument and in their brief that they would make the claim that the penalty was legal under congresses power to tax us. All Roberts did was agree. It wasn’t a secret, except in public.
I don’t disagree with your call on why you think Roberts made this decision, but it wasn’t just Roberts who played it safe, it was the States challenging the law. They could have attacked the Tax power claim as hard as they did the commerce clause, but they didn’t. I think they didn’t for many of the same reasons you think Roberts made his decision, simply put, you don’t come between a man (the federal government) and his ability to make a buck (especially if you are living in his basement). Limit the Feds’ ability to get money based on license or fee and you could royally screw the gravy train for a lot of state governments. I think this had a place in Roberts’ reasoning as well.
I know we won’t agree on this, but I don’t think he re-wrote that law, that provision in the law was written to be Constitutional under established precedent and judicial scrutiny. Probably by some very smart guys who thought hard enough about it that they didn’t even see the need for severability.
Some nerdy ex-hippy in the bowels of some think-tank can dribble with his left, he’s taped our defense, he’s another sports metaphor…
What we should all be clear about is that the next time our pundit betters want a GOP president to put the smartest guy in the room up on the bench, we pray that the bastard still owes a favor to his kindergarten teacher.
LMC, I suspect the truth will out when the biographies and autobiographies are written. It all depends on whether the Ministry of Truth has been established or abolished by then.
As I recall, the tax power claim wasn’t argued because they thought it wouldn’t be deemed ripe until 2014. Normally, you can’t challenge a tax until you’ve had to pay it.
I’m not going to keep rehashing this. If you are right, you are attributing to Roberts the kind of intentionalism that somebody like a certain DDA tried to use to discredit the idea of intentionalism altogether — namely, that Congress had a super secret plan to intend a tax that they hoped would pass constitutional muster as a penalty, but if it didn’t, would be upheld as a tax. But the text of the law doesn’t say that, and it’s the text of the law that needs to follow legal convention. Or else any justice can read anything ironically from here on out, arguing that s/he knows best what the legislature really meant, regardless of what they said in the text of their law.
I don’t think they intended a secret tax at all. They didn’t want a tax. Because they wanted to say they weren’t raising taxes. Which is why they came up with the idea of a penalty, voted on it, and passed that. They wanted an enforcement mechanism that would punish those who didn’t comply. They wanted to revenue and the power that comes with the mandate. That’s not the same as saying they really wanted a tax and just tried to hide it as something else, as if that something else isn’t a legitimate way of attempting the same thing that a tax attempts to do.
They passed a penalty to do the job. They intended the law to use the penalty to act as a kind of tax in essence, without it being one in fact and legally.
They were hoping they could win the penalty argument through the Commerce Clause argument. Instead, Roberts gave them a win on the tax argument they didn’t write and didn’t vote on.
He did that by deciding that what they wrote meant something different then they claimed it did, that he can decide what it is they meant, and that we needn’t care about the text itself or the legal conventions associated with drafting law. Intentionalists allow that a failure to signal your intent doesn’t indicate a failure to mean what you meant; but it does mean that you are likely to be misunderstood, and in law, if the plain language of the text aids in that misunderstanding, it needs to be reworked.
The irony, McGehee, is that by 2014 there won’t be anyone left with enough income to qualify for the penaltax.
totally not fair, I haven’t even cracked a single box of wine.
Anyway, I don’t want to piss you off so I won’t write my defense, which isn’t in any way any more circular than your position in this case, but it would re-hash the same ground and you’re not buying it.
Plus, I have to drive to Chicago, so if anyone wants to yell at me over a beer in the Lisle-Naperville area around 9, I’d be happy to meet up.
It is not commendable to uphold a law you have to admit you’re reading in a way not ostensibly intended by those who passed it, in order to save it. To do so is to act as a Daddy and /or a King.
Like the way Jimmy Stewart “fixed” Zu-Zu’s rose. Plot point or no plot point, he lied to a little kid so that she would be comforted! That’s just wrong.
Include the sub-prime mortgages the predatory Bailey Building and Loan was passing out like crack and you’ve got the makings of the Most Immoral Movie in America.
Waitaminute. So we’re living in Potterville? What a revoltin’ development this is.
Thing is, LMC and Jeff, arguments like the one between y’all—that inevitably begin rotating and descending into semantic hair-splitting the likes of which are rarely seen outside blog comment sections—should have served as sufficient evidence that the law as written is inherently incoherent and therefore functions as a de facto tyranny to any populace unlucky enough to live under its regime.
Burn it with fire; don’t start over.
So we’re living in Pottersville? What a revoltin’ development this is.
The incidents I cited don’t take place in the alt-universe, so no, we’re still in Bedford Falls.
Juuuuust keep telling yourself that in the days to come. It’ll make the camps easier to take.
We need a hand signal so we’ll know each other.
LMC, I have no idea where the Lisle-Naperville area is, but I’m headed to ChiTown tomorrow and will be staying on the Miracle Mile tomorrow night. After a client wine-and-dine, I’ll be out looking for trouble.
But I warn you, a red wine-fueled RI Red spouting politics in a swanky bar may not be the prettiest picture you’ve ever seen. At least I won’t be armed – Chicago being one of those places that loves a disarmed population of law-abiders, but just warns the gang-bangers to go ahead and shoot each other, but stay away from the kids.*
Sorry RI, I’m bugging out right after lunch tomorrow. I have to be back in civilization by dinner or else. I’ll just sit here and yell at the video poker machine.
OK, LMC. We might encourage a drone strike otherwise. Although I will still encourage Jeff to hold a pw convention at a secret, undisclosed, underground location. With Mark Levin as guest speaker.
“… stare decisis — that is, the decisions made wrongly by previous courts need to be respected so that the wrong decisions they make will stand, and collegiality and decorum and the reputation of the Court rein supreme.”
Or, (in Dangersimplicity;) stare decisis is the left’s shield for abortion.
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