Chief Justice John Roberts Channels Oliver Wendell Holmes, Not Owen Roberts – OpEd


By James A. Montanye

Conservatives like to have their constitutional argument both ways—to argue on one hand that the Supreme Court’s is obliged to defend against legislative folly and administrative overreach, and on the other hand to argue that the Court is obliged to uphold the Constitution’s letter and spirit. They often ignore, however, that Article III actually grants the Court no power of constitutional review whatsoever. That power (if indeed it is such) was arrogated by the “activist” Chief Justice John Marshall in the celebrated case of Marbury v. Madison (1803). The framers evidently found no subsequent need to clarify Marshall’s aggressive ruling by means of a constitutional amendment, and so the Court continues offering its opinions on the constitutionality of legislation. The Court lacks the means to enforce these opinions, however, making its influence essentially contingent upon the approbation and esteem in which it is held (recall that President Andrew Jackson openly defied the court without consequence).

The upshot is twofold. First, competing political parties have come to expect that the Court will step in to settle the country’s political hash. Second, and more significant, Congress and the Executive have lost the incentive and perhaps the will to take primary responsibility for the constitutionality of their actions, expecting instead that the Court will act appropriately when the other branches demure. This process has created an unfortunate judicial overhang. Conservatives understandably are disappointed by the Court’s Obamacare ruling, and especially by Chief Justice Roberts’ “liberal” vote conflating taxation (distribution) with “penalties” (retribution), and which otherwise is vaguely reminiscent of former Associate Justice Owen Robert’s infamous “switch in time.” However, they are obliged equally to respect the Chief Justice’s evident desire to chisel away at the historical accretion.

Roberts’ pithy dictum in Obamacare, to the effect that the Court does not sit for the purpose of vetting perverse legislation, echoes (with contextual emphasis) the often-forgotten views of the former Associate Justice Oliver Wendell Holmes. Two quotations from Holmes’ private reserve characterize his jurisprudential temperament: (1) “I quite agree that a law should be called good if it reflects the will of the dominant forces in the community even it takes us to hell. … if you can pay for your ticket and are sure you want to go, I have nothing to say;” and (2) “I am so skeptical as to our knowledge about the goodness or badness of laws that I have no practical criticism except what the crowd wants” (qtd. in Robert Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes, University of Chicago, 2000, p. 59). Holmes once confided to Harold Laski along similar lines that he presumed a law constitutional unless it made him want to “puke” (qtd. in Richard Posner, Overcoming Law, Harvard, 1995, p.192).

Roberts’ thinly disguised sentiment concerning Obamacare falls one retch short of a puking. The opinion’s greater good could lie in its apparent desire to shift the adverse constitutional consequences of legislative action back onto Congress and the Executive, and ultimately back onto the electorate. Obamacare is not etched in stone—it can be wiped away at any time by an electorate that prefers not go to hell, and realizes that it can’t afford the passage there in any event.

This article was published by The Independent Institute and reprinted with permission.

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