Tonight on the Obamacare Soapopera: Lonely Chief Justice Roberts makes peace with history

There are legal commentators far better equipped than I to discuss the Supreme Court's decision, so I will leave it to parse over its many facets. But I could not resist posting about Chief Justice Roberts's odd placement in this decision. This being the first time over a major case that he has ventured from the conservative wing of the Supreme Court, many are assuming that he has at least one eye on his historical legacy. I think this is correct, but perhaps a little more complicated than some are assuming. If Roberts is beginning to think about his legacy, then there are at least three things this decision does that might help define a new kind of conservative jurisprudence for the next half century.

1) The return of judicial restraint. Conservatives love to complain about "activist" judges and "legislating from the bench," but they don't really mean it. Most conservatives are happy to have judges invent economic rights (substantive due process, anyone?) and actively enforce them against legislative proscription. Roberts has, up until now, appeared squarely in this camp, preferring confrontation to restraint in most cases. But Roberts has worked hard here to use statutory interpretation to avoid coming into collision with Congress and the president. This is what judicial restraint really means, and Roberts's endorsement of it might be a harbinger of things to come.

2) Deploying a legal fiction. Roberts's departure in this decision is significant because he essentially says that the taxation clause, rather than the commerce clause, governs the individual mandate. Commentators right and left have complained that this is bad reasoning because it effectively gives Congress the same power it claimed it had before while muddying the waters in the process. Conservatives can point right to the president himself, who repeatedly called this provision a penalty, not a tax. Liberals complain that the test invented by Roberts (the "inaction" is not commerce test) is poorly suited to judge the current reach of federal power. Well, ok. But I rather like his fiction. I have always been uncomfortable with the notion that the federal government can compel you to participate in a particular kind of commerce. There are things that legislatures should not be able to do, and we do have to think about these limits from time to time. As Roberts pointed out, energy and transportation are both subjects of interstate commerce and we don't really want the government ordering us to buy a particular lightbulb or an automobile. Liberals have largely dismissed this argument, pointing out that the mandate was part of a comprehensive set of reforms and was special. In short, that Congress would not (could not) start ordering everybody to eat broccoli (or purchase cars, or whatever else). Liberals also repeatedly analogized the mandate with social security, and with other programs that rely largely on a redistribution of wealth through taxes. Roberts's opinion speaks to this. He deploys a legal fiction (the mandate, described as a penalty and denied as a tax, is actually a tax) in order to reserve the commerce clause. There are limits, he is reminding everyone, and we can be creative in enforcing them.

3) Connecting to the past. John Roberts loves John Marshall. John Roberts would like to be John Marshall. He is looking forward to a long tenure on the Court. He has an opportunity to lead the conservative wing in dominating jurisprudence for the next quarter century. And his legacy, he likely hopes, will live on past his chief justiceship. These were all traits of Marshall's, and so the parallels are striking. And there must be a reason that Roberts went back to McCulloch v. Maryland and Marbury v. Madison and the public writings of John Marshall on so many occasions. There are some ironies, however. Marshall famously used the power of the Court to curtail the police powers of the states and to bolster the federal government. His iconic opinion in McCulloch (1819) supported the power of Congress to incorporate a bank, something it was not granted in the original Constitution and which more than one Framer (including James Madison) believed was outside of Congress's power. (Full disclosure: President Madison signed the second Bank of the United States into law.) But perhaps the irony is intentional. The balance of power between the states and the federal government was different in the 1810s. The federal government was resisted far more frequently, and was much much smaller than it was before the end of World War II brought us a military-industrial complex and a Great Society. Marshall, one might say, fought for the underdog. Is this what Roberts is doing?

These are little more than the musings of someone who is trying to understand Roberts's positioning on the Court. But I must close with tears for poor John Roberts, whose opinion on the commerce clause leaves him in a 1-4-4 position, alone and lonely, naked to his enemies, etc. etc. But it is not his alienation from his compatriots that saddens me. It is, rather, his alienation from John Marshall. For a good portion of Marshall's chief justiceship, he was able to achieve consensus on the Court, to issue unanimous opinions and discourage even concurrences. Roberts clearly cannot. But then again, not even John Marshall could get this Court to put down its politics and behave like a judicial court.

Veterans, the Desert Cross, and the Separation of Church and State

The Supreme Court heard oral arguments yesterday in Salazar v. Buono, an interesting (albeit somewhat technical) case involving the existence of a five-foot white cross on public land (in the Mojave National Preserve) erected by the Veterans of Foreign Wars to honor those who died in World War I. The VFW was initially hit with an injunction directing that the cross not be displayed as a violation of the Establishment Clause of the First Amendment. The federal government covered the cross, and Congress in the mean time organized a land transfer to the VFW that required that organization to maintain a war memorial on the land. A second injunction was sought, the district court ruled the land transfer invalid, the Ninth Circuit upheld, and the case is now pending before the Supreme Court.

The most interesting exchange in oral arguments was arguably the least important, from a legal standpoint. The issues before the Court (e.g.: standing of the respondent; constitutionality of a land swap with a reversionary interest) turn on technical issues that will have to be translated into English for the rest of us. But the interesting exchange had to do with the meaning of religious symbols. I quote from the transcript, which you can find here.

JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --
MR. ELIASBERG (counsel for the respondent): I believe that's actually correct.
JUSTICE SCALIA: Where does it say that?
MR. ELIASBERG: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that's why the Jewish war veterans --
JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me --what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have ben in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.

Outrageous indeed. Scalia probably meant that the intent of the cross's erectors (the VFW in 1934) was to honor all the war dead. What he left out was that in 1934, the VFW could conflate "American war dead" with "Christian war dead" and receive very little in the way of argument. This conflation may still have offended Jewish, Muslim, Buddhist, and veterans of other faiths, but this was not the intent of the VFW. They were simply using a common cultural symbol. In this sense, Scalia misses the mark entirely--his comments were predicated on the fact that nowhere did the memorial explicitly exclude any other religion. But symbols are useful precisely because they implicitly (through a cultural identification process) include and exclude certain groups of people. To be blind to this is to be obtuse (if not outrageous).

But I reiterate: this exchange was not central to the issues in the case. It is interesting precisely because it gets at the heart of the question of how culture can inform our understanding of legal and constitutional issues. And for the record, I understand Scalia's evident frustration. I attended Pomona College, an educational institution founded by Congregationalists and whose official seal portrays a cross and the words: "Our Tribute to Christian Civilization." As a senior student there, I publicly opposed changing the seal to be more inclusive. I did so not because I value "Christian Civilization" (it is a misnomer), but rather because the symbol has historical import and we cannot simply change out symbols in the name of multiculturalism without risk of losing our sense of historical presence.

The same argument, I think, might apply here. And the oral arguments are worth perusing just to see how the justices signaled one another about the inherent trickiness of Establishment Clause jurisprudence, and just how much context matters in making determinations that honor the spirit of the First Amendment, the concerns of a pluralistic United States, and our own sense of identity and history.

Cosmopolitan Judging and Habeas Corpus

Eric Posner has recently posted an essay analyzing Boumediene v. Bush, critical of what he calls "judicial cosmopolitanism" in the decision. The essay is typical of Posner--learned, nimble, and provocative. I do not find it convincing since he is, as he himself admits, working on the premise that Boumediene's major contribution to jurisprudence was to extend constitutional rights to noncitizens on foreign soil. The Court made no such pronouncement, and Posner acknowledges that the decision can be read much more narrowly.

If one separates his analysis of Boumediene to his critique of cosmopolitan judging, then we have the makings of a new debate in constitutional law. For better or worse, conservatives seem to line up in the "American exceptionalism" and positivist camps, adhering to originalism in constitutional construction. Liberals seem (also for better or worse) to be more interested in global human rights and the symbiotic relationship between American constituitonal law and global law. Posner's essay, while not particularly deep, is an excellent introduction to these ideas, and offers a conservative, thoughtful critique of cosmopolitan judging.

One effect of continually appointing strict originalists and positivists to the bench (people like Scalia and Alito) is that their palpable disdain for foreign law in an increasingly global era has lessened the influence of the Supreme Court internationally. The Court used to be the gold standard for constitutional law, but it is now in decline. Not that this signals an immediate need to admit foreign law into Supreme Court opinions--and certainly not as controling law--but we must be honest about the consequences of judicial parochialism as well as judicial cosmopolitanism.