When judges corrode the law

By Jeff Jacoby can be reached at jacoby@globe.comBoston Globe

During his Supreme Court confirmation hearings in 2005, then-Judge John Roberts emphasized his strong belief in judicial modesty. “Judges are like umpires,” Roberts famously said. “Umpires don’t make the rules; they apply them.” If confirmed as chief justice, he promised, “I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

But it was no impartial umpire who authored last week’s 6-3 opinion in King v. Burwell, the Obamacare subsidy case. Far from applying the rules as enacted in the Affordable Care Act, the chief justice discounted those rules as the product of “inartful drafting,” passed by Congress without sufficient “care and deliberation.” The lawmakers’ substandard work product, he argued, freed the Supreme Court to disregard the statute’s plain language, construing it to mean the opposite of what it says.

The specific issue was whether health plans purchased through insurance exchanges established by the federal government are eligible for tax subsidies. Since the law explicitly restricts subsidies to “an exchange established by the state,” the answer should be obvious. But disallowing subsidies in states that refused to establish exchanges might have caused Obamacare to implode. That wasn’t an outcome Roberts wished to risk, so he turned the straightforward meaning on its head. “An exchange established by the state,” he wrote, also means an exchange not established by the state.

In short, as law professor Jonathan Adler tartly observed, the “umpire” took it on himself “to pinch hit to ensure the right team wins.”

Roberts is hardly the first justice to succumb to the temptation to contort the law’s plain text to generate a desired policy result. Ten years ago, the court infamously ruled in Kelo v. City of New London that private homes could be seized by eminent domain and given to corporate developers. The Fifth Amendment authorizes such takings only when the government needs the land for a legitimate “public use” — for instance, to build a highway. But in a 5-4 opinion by Justice John Paul Stevens, the court decided that “public use” could also mean private use, so long as the new owners were expected to create new jobs or pay more taxes than the dispossessed former owners. In effect, Kelo empowered government to transfer almost any owner’s property to a more powerful private party: exactly what the constitutional language forbids.

The Commerce Clause is another constitutional passage whose meaning has been corrupted by judicial presumption.

One of the federal government’s limited powers, enumerated in Article I, is “to regulate commerce . . . among the several states.” For most of American history, Congress and the courts respected the obvious distinction between interstate trade, over which federal regulators have authority, and purely local intrastate activity, which the Constitution placed beyond their reach. That distinction died with Wickard v. Filburn, a 1942 case in which an Ohio farmer was penalized for growing more wheat than federal rules allowed. Nearly all of Roscoe Filburn’s wheat was consumed on his own farm; none crossed state lines. Yet on the theory that even a few bushels of home-consumed wheat might indirectly affect the national wheat market, the justices decided that Congress could regulate it. By that logic, Congress can regulate everything. Now, alas, it does.

Take one more case of justices riding roughshod over a text’s clear meaning: United Steelworkers v. Weber. Under Title VII of the Civil Rights Act, it is “unlawful” for “any employer” to discriminate on the basis of race in “on-the-job training programs.” So when Kaiser Aluminum set up an on-the-job training program that gave preference to black employees, the white employee who sued had an open-and-shut case, right? Wrong: In a 1979 decision, Justice William Brennan wrote that the excluded white worker could not rely “upon a literal construction” of the law, since Congress’s intention had been to improve the condition of blacks. Bottom line? A law prohibiting race-based hiring must be interpreted to permit race-based hiring. Brennan favored racial preferences. Therefore racial preferences would be upheld, statute or no statute.

The rule of law isn’t indestructible. It is corroded by judges who act like superlegislators — never more so than when torturing the plain words of the law, forcing them to say what they don’t mean.


Dante Ramos: Justice Antonin Scalia’s bitter dissent

Supreme Court justices on same-sex marriage

Michael J. Klarman: Justices have malleable view of democracy

Editorial: Court’s decision on Obamacare should sober opponents

Editorial: A landmark affirmation of individual dignity

About Ask Marion

I am a babyboomer and empty nester who savors every moment of my past and believes that it is the responsibility of each of us in my generation and Americans in general to make sure that America is as good or even a better place for future generations as it was for us. So far... we haven't done very well!! Favorite Quotes: "The first 50 years are to build and acquire; the second 50 are to leave your legacy"; "Do something that scares you every day!"; "The journey in between what you once were and who you are becoming is where the dance of life really takes place". At age 62 I find myself fighting inoperable uterine Cancer and thanks to the man upstairs and the prayers from so many people including many of my readers from AskMarion and JustOneMorePet... I'm beating it. After losing our business because of the economy and factors related to the re-election of President Obama in 2012 followed by 16-mos of job hunting, my architect-trained husband is working as a trucker and has only been home approximately 5-days a month since I was diagnosed, which has made everything more difficult and often lonely... plus funds are tight. Our family medical deductible is 12K per year for two of us; thank you ObamaCare. But thanks to donations from so many of you, we are making ends meet as I go through treatment while taking care of my father-in-law who is suffering from late stage Alzheimer's and my mother-in-law who suffers from RA and onset dementia as well as hearing loss, for which there are no caretaker funds, as I continue the fight here online to inform and help restore our amazing country. And finally I need to thank a core group of family, friends, and readers... all at a distance, who check in with me regularly. Plus, I must thank my furkids who have not left my side through this fight. You can see them at JustOneMorePet.
This entry was posted in Constitution, Knowledge Is Power, Politics, Thoughts ..., Wake Up, Wisdom, You Be the Judge and tagged , , , , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s