John Roberts, Chief Justice of the Supreme Court of the United States, did some surprising things this week. The least surprising was that he upheld the constitutionality of the individual mandate within the Affordable Care Act, a.k.a. Obamacare. More surprisingly, he remembered that there is a separation of powers, and respected the fact that the judiciary’s job is to uphold law, however badly that law was written. He thought clearly and for himself, and was not over reliant on the arguments put forward by others. And despite all the pressures to do the contrary, he did his actual job. Not what people wanted him to do. Not what other people, biased and petty, say is his job, or should be his job, or how he should do his job. He just did his job. Out of nine judges, he marked himself out as only one who really knew how to do his job. In a world where some of man’s most important and impressive institutions appear to be creaking at the seams, he gave me renewed confidence that some good men can hold true to the original goals of the institutions they serve, and do the right thing.
Roberts’ opinion on the constitutionality of the mandate provision of Obamacare was truly unique for two reasons. First, alone amongst the panel of judges, he was the only person who saw the US constitution, and the substance of Obamacare, for what they really are. The purpose of Obamacare was to raise money from US citizens to pay for healthcare for a larger number of them. This kind of federal activity may not have been in the mind of framers of the US constitution, but it is not against its letter or its spirit either (if a string of words can truly be said to have a spirit separate to that of the men who wrote them). Second, Roberts reasoned clearly even though it was bound to invite scorn from all quarters. He has wounded those parts of the left that would like to pass off government’s intention and power to raise money, and to direct its spending, as the mere regulation of commerce. And he has wounded the parts of the right that would go along with that lie in as far as it makes for convenient counter-arguments, so they could set light to a straw man argument. With four judges reaching the right conclusion for the wrong reasons, and four judges reaching the wrong conclusion for the wrong reasons, Roberts alone was able to remember his job is to judge, based on the rules themselves, and not to serve up the answers to suit the prejudices of any baying, irrational or partisan mob.
Unlike some commentators, when hearing the first, brief summary of Roberts’ judgement on the constitutionality of the mandate – a provision essentially designed to make Americans pay, in advance, for healthcare that they may not need and may not want to pay for – I was immediately struck by its outstanding and obvious appeal. After so much talk and analysis of Obamacare, both convoluted and extreme in nature, involving bizarre analogies relating to interstate commerce, the legal power to stop a man from feeding his family, and the threat we will all be made to eat broccoli (!), Roberts’ judgement was clean, simple, elegant and intuitive. That the argument was unexpected, and that those attributes do not hold much appeal for some of America’s elite class of politicians, lawyers and squawkbox chatterers, says everything about what is wrong those elitists, and why we are lucky there are still some people like Roberts. America should be glad that its chief justice is an individual, willing to apply reason and lift themselves above the murky fray.
That the principles behind Roberts’ argument can be stated extraordinarily succinctly, far more succinctly than the arguments of his opponents on either side, says a lot about why his argument is right. Let me now summarize those principles, very simply. Requiring people to buy medical insurance is nothing other than creating a privatized system for healthcare taxation. It is no different, in principle, to being required to pay towards the cost of a military that may, or may not, benefit you personally at some unknown later point in time. The only difference between the private and public aspects of these two examples is that when paying for the military, the money flows into government coffers, who then spends it on a mixture of public and private suppliers of military services and equipment, whilst in Obamacare the government tried to maintain an illusion that there was no interjection of government between the private citizens who would pay for Obamacare, and the private companies that supply it. By ruling that the mandate is a tax, Roberts lifted that disingenuous veil. Enforced ‘private’ transactions are, in every important aspect, public transactions.
A private market tax is an oxymoron because taxes work by compulsion, not through a genuine choice of the consumer to make a purchase. But then, consumers are not making genuine choices either, unless they are so fearless and devout they would refuse any medical care they had not pay for. I pray forgiveness from those sturdy few who can live within the bounds of such a brutal discipline; most of mankind turns into craven hypocrites when offered healthcare they need, paid for by unknown strangers, which they would not contribute towards, if the roles were reversed. So per Roberts’ reading of Obamacare, anyone who decides not to cover their medical expenses through buying insurance (the privatized form of tax), and hence solely relies on emergency healthcare provided through taxpayers’ money, is made to pay a traditional tax, taken through the government’s internal revenue service. Everyone who obtains adequate private cover, through whatever means, is exempt from paying the tax to the IRS. Is this not an elegant, honest, fair representation of the fundamental aims and working of Obamacare? I would say it is, and I doubt the motives of anyone who says otherwise.
The argument is crucial because, as Roberts identified, it is because government can legitimately raise taxes that the law is constitutional. But I think it is important here not solely to focus on the mandate, but to understand the whole scheme of Obamacare. The single overriding purpose of Obamacare is to raise more money from citizens to provide more healthcare for them. Its proponents would deceitfully promise that there is no need to raise more money, because improved efficiencies would lead to the desired results. That is not a promise they are entitled to make. But whilst they were deceitful, the means (raising more money) to attain the ends (delivering more healthcare) is plain. This is why Roberts’ judgement is so fair. It would be perverse to rule Obamacare unconstitutional, and hence block government action, on a technicality that the means had been badly misrepresented by its proponents (which it was) in order to deflect criticism of what they were doing. And it would be especially perverse precisely because a more straightforward a means to attain the ends – that government takes money, then spends it on suppliers – would be constitutional. To argue that these contrived means are unconstitutional – that government cannot tell citizens to spend their money on suppliers, and if the citizen does not, that government cannot then take money from the citizen and then spends it on suppliers – is to ignore the existing and naked power of government. It could not have been the framers’ intention to write a constitution that says government acts lawfully when acting as a tyrant, but unlawfully when it tones down the more tyrannical aspects of how it attains the same goal.
So, to summarize the summary – everybody pays a tax for medical care, whether privatized or to the government, and the government is allowed to make people pay taxes. I find this argument compelling, because it dives through all the ridiculous wordplay to arrive right at the essence of what Obamacare was meant to do – and exactly why people dislike it. Whether people want Obamacare is a different question to whether it is constitutional. The question for the chief justice should only be whether the substance – the actual substance, and not contrived rationalizations and constructions that amount to a toppling, treacherous tower of words, whether promulgated by spinners from the Whitehouse or political activists dressed in silly robes – is permitted by the constitution. To summarize the summary of the summary: levy tax to supply healthcare, constitutions allow governments to levy tax. Does anybody, honestly, dispute this is what Obamacare is meant to do? And does anybody, honestly, dispute that governments exist, at least in part, to perform certain activities that are paid for through taxation?
Life is a game, and laws are the rules of the game. That some ‘conservative’ pundits lambasted Roberts says a lot about how they try to win the game. They forget that conservatism is a philosophy for how we should play the game, irrespective of the conclusions reached. Conservatives preserve, unless there is clear need for change. And where change is needed, it is made piecemeal, conservatively. It is not made radically. And the best route to good, decent, piecemeal reform is to be transparent and plain in what institutions are, and how they work. Contrivance is a sin. Artificiality is dangerous. The plainer and more straightforward our honest appreciation of how our current systems work, the better our ability to improve them as necessary, and only as necessary. This is the bedrock of conservatism. Not smaller government. Not lower taxes. Not strong defences, or any of the other myriad attributes that may flow from the principles of conservatism. The first principle is to honestly understand how things work, so when improvements are made, we minimize the risk of bad and unintended consequences, and we conserve all that already works well.
And all I have said so far, but it takes so long to say because so many people insist on ignoring this important formula for success, is that we should always be mindful of the relationship between substance and form. Substance is the essential truth. Form is the way the truth is tarted up, transformed into words that caress, persuade and please. Amongst the nine judges, eight preferred to make their judgements based on form, and not substance. Only one preferred to judge based on substance, not form.
The four judges who argued that Obamacare is something to do with interstate commerce are wrong. The government’s argument is a contrived argument and should not be considered constitutional. To uphold it would be to vote for form (regulating commerce) over substance (making people pay for a service where there is only the most indirect connection between the payment they make and the service they receive, if any). The US government’s arguments were so vacuous and counter-intuitive that they are not worthy of further analysis, although those judges that found the mandate unconstitutional did, rather ridiculously, spend a lot of time analysing it. That they spent so long trying to determine what was wrong with the argument says a lot about the natural prohibition for the judiciary to interfere with the proper function of the rest of government. But when focusing so hard on what was wrong, they lacked the insight to look beyond the lies to see the unstated, but rather elegant, truth. In short, the government has no right to regulate a cross-state commercial activity, when there is no commercial activity. And the power to regulate an activity cannot imply the power to enforce the activity, just so it can then be regulated. I will not waste more words on these absurdities.
The absurdity of the liberal-leaning judges, who said the mandate was constitutional per the rights to regulate commerce, does not excuse an equal and opposing absurdity. In the face of all reason, four judges argued that the US Government may not tax people, or that a tax is not a tax unless you call it a tax, or a hundred other silly arguments that place form over substance. Reading their judgement, I can only conclude it was written in a childish temper, by a red-faced judge embarrassed to be so comprehensively out-thought by Chief Justice Roberts. Judges are paid to do nothing but think. They should be ashamed that they spent so much time surveying what was obviously wrong with Obamacare, that they neglected to notice what was simply right about it.
It should be all the mall embarrassing to the right-wing judges that opposed Obamacare that Roberts’ decision is the one which most naturally flows from the principles of conservatism. The other judges spent too long trying to reach the ‘right’ conclusion, and forgot that the correct conclusion can only flow from a correct argument based on truth. A real conservative should follow their principles, wherever they lead. A real conservative does not confuse the role of the court, just in order to block the non-conservative agenda of a non-conservative government. Voters have plenty enough power to do that. Opposing government is not the job of the court, and a conservative should not try to change the job of the court. That many conservatives cite how liberals have tried, or succeeded, in going beyond the proper role of the court should make conservatives even more ashamed to commit the same sin.
Let me examine, in some detail, the dissenting view that said the mandate was not taxation. I find it unspeakably awful. In contrast to Roberts’ very appealing and persuasive lines of reasoning, the wording of this dissenting opinion is petulant. It is full of bombast. It is not becoming of a judge.
To begin with, the dissenters that said the mandate was not supported by the government’s tax-raising powers opened with the theory that nothing could be both a penalty and a tax.
…a penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive.
Nothing. Ever. Could be both. A penalty. And a tax. At the same time. That is what they wrote. In the face of all conservative reason, they wrote that. And here, already, I have the sinking feeling that the judges stopped being judges and started being word-twisting politicians. Here is the real truth about taxes, spelled out in a way that every conservative should agree. Some things called ‘fees’ are taxes. Some things called ‘fines’ are taxes. Taxes are fines. Taxes are fees. Whatever words are used to describe the act of government taking money out of your pocket, the effect is the same – the money is not in your pocket any more. It is mysterious and wrong to suggest that the citizen undergoes a fundamentally different experience if paying a ‘fee’, paying a ‘fine’, paying a ‘tax’ or paying a ‘hollamijimbot’ (that being a word I just made up for the sake of illustrating the point). Governments raise money, and they spend money. They take from people. Nothing about the enforced requisition of someone’s assets demands that the requisition cannot serve two purposes simultaneously – to discourage somebody from doing something (a punishment) and to raise money which the government will spend (taxation). Do these justices seriously think there is no ‘punitive’ element to tobacco taxes? Is there a logical principle that says the money raised from a fine on insider trading cannot be spent the same way as money raised by taxing the sale of gas? Politicians love to mix punishment with their taxes. Raising money by punishing bad people for doing bad things is so, so much easier and more popular than taking money from voters as a thank you for the good things they do. In some parts of the USA, there are even taxes on illegal drugs. Was there not a punitive element to these taxes? And consider the following conservative nightmare…
President Obama: I hate you, Mark Levin. I’m going to take 90% of your income in tax, just to punish you.
Mark Levin: If it’s a tax, then it’s no punishment.
President Obama: I really hate you, and you’re making me even more angry with you imbecilic intransigence. I’m going to tax you at a rate of 99%. That punishment will serve you right!!!
Mark Levin: Nope, there can’t be a punitive element to a tax. That’s a semantic impossibility.
President Obama: F*ck it. I’ll tax you at 100%.
Mark Levin: I win! You stopped saying it was punishment.
Seriously, does any conservative not see that a government-mandated requisition of your privately-owned assets has an inherently punitive element to it, no matter why it was done? The difference that circulates ‘punishment’ is one of motive. A punishment is motivated by the goal of making the recipient suffer (for retribution, as a deterrent). But we should not anthropomorphize. Governments are not individual people, and they do not have ‘motives’ like an individual has motives. When a government taxes you, it punishes you, and when it punishes you, it taxes you, because the difference in motive is meaningless when ascribed to a group, in the way that government is a (changing) group of people.
That the distinction between penalty and tax is hollow is proven by the next statement of the dissenting right-wingers.
Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was im- posed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both.
Taxes could be penalties. Penalties could be taxes. But they cannot be both at the same time, according to these four judges. I ask one simple thing: what is the nature of this transformation, that turns a tax into a penalty, or a penalty into tax, but denies the possibility that they could be both at the same time? Where is this crisp and clear dividing line? It only exists in the mind of someone playing at semantics. This argument is the gospel of form over substance. And this is confirmed in the footnote, which finds there is nothing in statutory law that stops something being both a penalty and a tax at the same time.
Of course it can be both for statutory purposes
Of course!! No natural reason or principle stops a tax being a penalty or a penalty being tax. Only some absurd constitutional principle stops it being both, for strictly constitutional purposes. Not that the judges can cite this principle, or this precedent. In fact, all they really note is the rather silly observation that nobody, constitutionally, has ever felt the need to write the superfluous construction “tax and penalty” in place of the word “tax” or the word “penalty”. It is only in constitutional law that the two must be, to use the judges’ emphatic words, ‘mutually exclusive’. In asserting this, the judges acted against all conservative principles. This is an invention. They cannot cite a rule that says taxes and penalties are mutually exclusive. They have just created it, and for the worst possible reasons – just to block an otherwise legitimate law. And even if such a principle had ever been stated, the principle should be abandoned because it is so plainly false. Taxes and penalties are in no way mutually exclusive. What true conservative could think otherwise?
And then we arrive at an utterly hideous contortion.
The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.
This is as straightforward a plea that form should override substance as it is imaginable to see. The substance of what Congress would do, and their power to do it, is irrelevant, per these judges. All that matters is how they ‘frame’, ‘describe’, ‘spin’ it. What a ridiculous and shameful assertion, and we should be thankful that Roberts plainly explains, in his opinion, why the opposite is true.
Consider if the situation was reversed. Consider if a lying government wanted to present a penalty as a tax. The ‘tax’, as they describe it, is solely to be levied on, say, Mark Levin. This hypothetical law explains the ‘tax’ is justified ‘because Mark Levin does not say what we want him to say’. It suggests the tax might be rescinded if Mark Levin changed his errant ways. And the level of the tax is that Levin will pay 100% of his income to government, forever more. Are we really meant to believe that the Supreme Court is unable to determine if this is a vindictive assault on a single individual, just because the word ‘tax’ was used throughout this hypothetical law, and there was no mention of ‘penalty’? That all that matters is the choice of words, and not the fundamental nature of what is being proposed?
As Shakespeare put it: a rose by any other name would smell as sweet. A tax by any other name costs as much. And if I decide to call my car a ‘banana’, or to call my sister a ‘banana’, or to call my ass a ‘banana’, or to call a tax a ‘banana’, the action of calling them ‘bananas’ does not, in fact, make them bananas. A thing is what it is, irrespective of how it is labelled. Now I would expect Supreme Court justices should have the ability to look into the words and see what is really going on. It cannot be that Obamacare is unconstitutional if it uses the word ‘penalty’, but somebody does a global search-and-replace in the word processor, inserts the word ‘tax’ instead, and now everything is constitutional. And a judge should be looking at substance. Normally we would expect the point of judicial review is to stop an abuse of language, to discover attempts to make the illegal seem legal, and to identify tricks of language that would present the unconstitutional as constitutional. It follows that the judge’s job is unchanged if the legislator uses language which makes the unconstitutional seem constitutional, or if they use language which makes the constitutional seem unconstitutional. They should see the substance either way. Granted that the latter example is not what you would normally expect, but it is the relevant example in this case. However badly worded Obamacare is as a piece of legislation, the superficial wording does not matter. The judges should look under the surface. The onus is on them to apply constitutional rules well and correctly, irrespective of the (purposefully dishonest or merely accidental) wording faults in the law they are reviewing.
From here, the remainder of the dissent tails away into insignificant rambling. If ‘mutual exclusivity’ can be enshrined as a principle, then the four judges who signed the dissent have very little left to argue. So their next few paragraphs just repeat the same lie over and over. For example:
In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
Like Roberts, I see no ‘violence’ to the ‘fair meaning’ of the words, if we construe that the Obamacare penalties are also taxes. And it seems most of the American right agrees; they have gleefully spread the news that Obamacare is going to raise taxes. Nothing has changed in substance, only an interpretation, so are Sarah Palin and Mark Rubio – to pick just two examples amongst many – also doing ‘violence’ to the ‘fair meaning’ of Affordable Care Act? Of course not. Thankfully, Roberts is right to assert, in his opinion, that taxes can be punitive. We all recognize that smokers are punished by coercive taxes. The penalty for not buying insurance, in this case, is likely to be lower than the cost of the insurance that was not bought – so it is hardly much of a penalty. Taxpayers’ money is, in truth, used to pay for emergency healthcare services and private insurance does, in truth, reduce the burden on emergency healthcare, so there is a natural, conservative, principle that the cost of government benefit be fairly linked to the cause of that cost, as far as that is practicable.
And then we get an interesting revelation, which shows the depths of the mental contortions of the four dissenting judges. A ‘tax’ can be so onerous to be a penalty. But a penalty cannot be a tax.
In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held — never — that a penalty imposed for violation of the law was so trivial as to be in effect a tax.
This argument only stands because it is circular. The judges reason that because taxes and penalties are mutually exclusive, then it means something to say that a ‘tax’ (as distinct from a tax, without the inverted commas) can be a penalty, and it also means something to say a ‘penalty’ is a tax, though they have never – never – said this themselves. It is interesting that the judges got confused, and forgot to use the inverted commas in the second sentence. They meant ‘penalty’ and not penalty. The sentence as constructed is a truism; because the judges believe penalties and taxes are already mutually exclusive, it is impossible to assert that a penalty is a tax, by definition. If we hence accept their silly rule of mutual exclusivity, we would only be able to assert that a ‘penalty’ is a tax. And at the conclusion of this unhelpful pair of sentences, we have learned nothing new. The judges are just repeating what they said already – that taxes are not penalties and penalties are not taxes so that is why you never hear of penalties that are taxes and never hear of taxes that are penalties. Hold on. ‘Taxes’ can be penalties. What a strange thing to write. Taxes cannot be penalties. But ‘taxes’ can be penalties. So we can have ‘taxes’ that are not taxes. What a piece of specious reasoning is this. If this is their objection to Roberts’ opinion that taxes can be penalties, then I see no merit to it. Apparently the judges can tell the difference between substance and form – between taxes and ‘taxes’ – but only when it suits them, according to mysterious principles they do not share.
The irony here, not lost on Roberts but lost on the four dissenters who argue a penalty cannot be a tax, is that Obamacare is constitutional even though it is ludicrously and atrociously worded. And it should not be struck down by even more ludicrous weasel words from the Supreme Court. Obamacare is constitutional despite all the poorly-chosen words that make it sound unconstitutional. Now I can finally understand why Solicitor General Verrilli did such a terrible job of defending Obamacare during the court’s oral hearings. He was faced with the kind of dilemma faced by lawyers in pulp fiction – his client is innocent of the murder, but his real alibi is that he was cheating on his wife at the moment of the crime. Obamacare was written by tax-and-spend do-gooders. They tried to find a way to do good without pushing a straightforward plan to tax-and-spend their way to the desired solution. When asked to defend themselves, they were inept, because the real defence was to come clean and admit that Obamacare is just a variation on the same tax and spend template they use to tackle every problem. They may be hopeless, inept and wrong in lots of ways, but they were not breaking constitutional law, and more the philanderer reluctant to see his mistress called to the stand.
Again, I can agree this is a peculiar situation, but not impossible, nor illogical, nor irrational. However badly worded, Obamacare is constitutional if its substance is constitutional. That the four dissenters list lots of examples of poorly-chosen words is of no matter whatsoever. To do so demonstrates a disturbingly simplistic understanding of their job. Their job is not merely to argue against government, like a prosecutor might argue against the defense. Their job is to judge. The good judge should see the correct legal interpretation even if the authors of a law make an absolute hash of it. A good judge should still be able to judge a man innocent, even if his defense is woeful and the prosecution skillful, or judge his guilt in the opposite circumstances. Judges are not voters on the X-Factor, giving their feedback on the merits of a performance. They are referees, trusted to correctly apply the rules. And if the correct interpretation of Obamacare is constitutional, then the law is constitutional, irrespective of the failings of the authors.
In asserting that the penalty in Obamacare is, in fact, a penalty and not a tax, the judges fail to look into the nature of penalties, and contrast them with fees. Car insurance is a useful analogy. Is car insurance mandatory in some states? Yes, in most of them. Can you be punished for not buying car insurance? Yes. Would you expect the punishment to take the form of a fine, or other penalty, that gets more severe for each transgression? Yes. It is in the nature of punishment that it gets more severe for repeat offenses. On the other hand, consider the state of Virginia, where drivers can opt not to buy insurance, if they pay a government ‘fee’ instead. The fee does not go up because the driver repeatedly chooses to pay it. It would be a punishable offense not to pay the fee – just as not paying taxes is a punishable offense. But the fee itself is no different, in substance, to a tax levied only on those who do not buy the insurance. And the reasoning is clear – the tax offsets the burden otherwise put on the public purse, and helps to motivate drivers to just buy insurance instead. Why is this not the fair analogy to the Obamacare penalty? The difference cannot be that one is called a ‘fee’ and another is called a ‘penalty’. A nominal difference is not a substantive difference. In substance, the Obamacare individual mandate and the Virginian uninsured auto fee are almost identical, except that one concerns car insurance and the other relates to medical insurance. A man who does not buy mandatory car insurance is breaking the law every day he drives without it. He does not get a one-year waiver from the law, just because he was caught and paid the fine. If he pays his fine, gets in his car the next day, and drives it without insurance, he is immediately liable for more punishment. But with Obamacare, there is no incremental aspect. Someone who does not buy medical insurance will be ‘punished’ via the levying of a fee. But that fee is not incremental. Once it is levied, it will not be incurred the following day, just because the taxpayer woke up the next day, and decided he would still rather not have private medical insurance. That the dissenting judges talk so viciously about the difference between penalties and taxes, and make no mention of this fundamental aspect of punishment – that it rises in severity according to how often the transgressor is caught – says a lot about their bias. A more honest appraisal of the penalty of Obamacare would conclude it is more like the Virginian uninsured vehicle fee than any ordinary fine.
But, for me, the nail in the coffin occurs here:
And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found — in Title IX
What strong metaphorical language – do lawyers normally spend their time nailing coffins? – for such a gently bureaucratic argument. It cannot be a tax, because the relevant words were presented under the wrong section heading. What forceful reasoning. If Obama wants to raise taxes in future, all he need do is use a misnomer when describing them, then ensure they are described under the wrong heading, and nobody will ever know that he secretly raised taxes!!!
The real truth is that the anti-Obamacare judges are peeved that the law is constitutional, despite the crass failings of Obama’s administration! It may be comical, but it is also true. Consider how the dissenting opinion finishes:
…once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners’ Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.
In other words, ‘if Government does a lousy job, then we do not have to judge’. How utterly wrong, and how utterly indefensible. Powers are separated. Government could do a very lousy job indeed, without inhibiting the judges from doing their job well. The Court’s job is to decide if a law is constitutional, no matter how poorly written or poorly explained. Chief Justice Roberts showed it is perfectly possible to apply the law without relying on the arguments put before the court. If the governments’ lawyers, and the plaintiffs’ lawyers had, by some strange act of God, attended court but been literally unable to speak, the Supreme Court would not be free to abrogate their duty to reach a judgement. And it remains true that there must be a heavy burden on the court if they wish to strike down a law, put forward by an elected government, as elected by the voters, on the grounds that the law is unconstitutional. It is not enough for the judges to argue that the government did a poor job of arguing for the law. The law can be constitutional, even if government made no argument to support it. As Roberts cites in his opinion:
The “question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.” Woods v. Cloyd W. Miller Co., 333 U. S. 138, 144 (1948).
And this is the most conservative principle of all. Laws tend to outlive governments. Constitutional laws tend to long outlive governments. Judges also tend to outlive governments. The passing tide of an incompetent government should not sway a judge from doing his or her duty. The law is the law, whether a good government is replaced by a bad one, or vice versa. A poor argument does not invalidate a correct conclusion, just as a good argument does not justify an invalid conclusion. A judge can reason for his or herself. Judges play the game according to the rules laid out in law, and so they should consider all good arguments, even those which have not been put before them. This is a truly conservative principle – to uphold the law irrespective of the changing faces of the men and women in government. It is conservative for judges to reason well, from established principles, according to established rules, without giving undue weight to the merits of the actors that play before the judge, or to the feelings of the populous that throng outside. A good judge should weigh the arguments, purely and simply, on their own merits. And that is why Chief Justice John Roberts will deserve to be recorded in history as that most surprising yet desirable pillar of a healthy society: a lawyer who concentrated on doing his duty, above all else.