Conservatives are mad about Chief Justice John Roberts’ conclusion that the individual mandate under the Patient Protection and Affordable Care Act is constitutional as a tax. I don’t like the mandate. And I think Congress has no business or power to mandate that anyone buy anything. But to those who assert that this was an act of judicial activism, maybe the more important issue is whether it was “bad” judicial activism?
I know most legal commentators have said Chief Justice Robert’s opinion was a poorly reasoned analysis relative to the taxing power. I tend to agree. I would have liked for Justice Roberts to have held the “penalty” wasn’t a “tax” and gone along with the other Justices who said the mandate (and the whole law) was unconstitutional. But let’s think a bit deeper about whether this was judicial activism and, if so, was it the “bad” kind.
It was activism in that he interpreted a statute in a way that even the law’s supporters said it was not to be read. In that sense, it was “activism” to come up with an interpretation – a twist if you will – that required some linguistic sleight of hand. But if we define judicial activism as a court stepping in and making up public policy, then is that really what we have here? Such, let’s say, would be what we might call “bad” judicial activism?
Now some might say, “Can there really be a good and a bad kind of judicial activism?” That’s a good question and, to be honest, I’m just fleshing out the question myself. So think with me a moment.
Bad activism is, to me, where a court prohibits a representative body from legislating when there is no clear contextual reason for such prohibition. I can think of two quick examples.
Abortion is one of those type cases. Democratically elected representative bodies across the nation made abortion, except in rare cases, a crime. In 1973, the Supreme Court, admittedly unable to point to any text in the U.S. Constitution governing abortion, stepped in, made up an undefined right of privacy, and prohibited such laws, leaving the people no remedy but to amend the Constitution.
The same is now happening with marriage. Again, democratically elected representative bodies have defined marriage one way, and courts strain to find legal justification for concluding that an equal protection problem exists if a policy-making body defines marriage one way and then makes that definition applicable to everyone in the same way. And, again, the people may be left with no remedy but to amend the constitution (which Tennessee and a majority of states have done to prevent “bad” judicial activism at the state level).
When it’s this kind of judicial activism, conservatives decry it and condemn the court
But consider how these examples compare to what Chief Justice Roberts did. He may have found a constitutional pretext for applying a power in a way never intended by our Founding Fathers. And in that sense Roberts was “making up” a textual justification for a public policy. That is not unlike making up a textual justification to set public policy related to abortion and marriage.
But here is the big distinction. Chief Justice Roberts did not prohibit a democratically elected representative body from doing something that, as an equal branch of government, it deemed constitutional.
We conservatives don’t like that he didn’t restrain the government, but notice that in not restraining the government, we, the people, were left in an entirely different position than with “bad” judicial activism: we have a remedy other than having to amend the constitution. It’s called elections and electing better people.
Think of it this way. In a very real way, in this case conservatives were running to the court to get it to stop something they didn’t like the government doing, claiming it was unconstitutional. Is that any different from what liberal abortion and homosexual rights advocates have been doing – running to the court to stop the government from doing something they don’t like, namely, restricting abortion and the definition of marriage?
Could it be argued that if finding a contextual pretext for allowing major policy decisions to be made by those we elected rather than judges we don’t elect is judicial activism, then it’s a “good” judicial activism?
Before we say “no” to my thesis, we conservatives need to ask ourselves whether we’ll be decrying judicial activism if at this time next year the Supreme Court finds a way to justify deferring to legislative bodies on the issue of marriage, allowing elected representatives, not a judicial ruling, to determine marriage policy. Probably not. The homosexual activists will surely decry such a ruling, but, again, they have not been left without a straightforward remedy – change the minds of elected policy makers.
Maybe all of us want someone to save us from the people that you and I have elected (or allowed to be elected if you don’t vote). And maybe Chief Justice Roberts was leaving us the prerogative and the power to save ourselves.
Now the question is whether we will effectively exercise that power in the August primary and November general election.