Today’s New Yorker comment by Jeffrey Toobin succinctly demonstrates all that is wrong with progressive judicial philosophy. Toobin applauds Roberts for siding with the four liberal justices regarding Obamacare because he thinks it (Obamacare) is good policy. In Toobin’s mind “[i]t was a singular act of courage.” Rule of law, separation of powers and other principles take a backseat to politics in Toobin’s (and the left’s) results-oriented view of judicial interpretation.
The proof is in the pudding. Toobin’s second paragraph, the one which first starts to provide analysis, supports the Supreme Court’s decision solely on the basis of political rationales. First, Toobin says the issue should not even have been close – that the mandate was clearly constitutional. What does he site as evidence of this – that Republicans initially came up with the concept (a reference to the Heritage Foundation’s initial proposal in the 1990s) and that Romney instituted a similar system in Massachusetts. That is not a constitutional analysis. It’s not even a legal analysis. Toobin’s conclusion – that because nobody challenged the idea when it was making the rounds as a philosophical matter and because it was implemented in Massachusetts it must therefore be constitutional is derisible. The mandate was being discussed in abstract terms as a means of making healthcare more efficient – the discussion was centered around its policy implications, not its legal status. Moreover, the discussion, or absence thereof, of the constitutional question surrounding a policy matter has no bearing, whatsoever, in providing evidence that a law is or is not constitutional. As to the Romney argument, either Toobin is the worst legal analyst in the history of journalism for not understanding the difference between state and federal actions or he is deliberately disingenuous. Clearly, in this case, it is the latter.
Perhaps my favorite bit of non-reasoning in this article is this passage:
What’s more, five Justices, including the Chief Justice, found that Congress had exceeded its powers under the Commerce Clause when it passed the Affordable Care Act. Supreme Court opinions are usually thick with citations of prior cases, but the key section of Roberts’s opinion, which was seemingly inspired more by Ayn Rand than by John Marshall, has almost none: “Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.” But the A.C.A. does not “regulate an individual from cradle to grave”; it simply forces individuals to help pay for the medical care that they will almost certainly receive at some time in their lives. As Ruth Bader Ginsburg noted in her separate opinion, “The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli.” [Emphasis added]
I won’t get into why Ginsburg’s analysis is flawed, and why the broccoli argument is perfectly on point, having addressed the issue in previous posts. Here, I want to address Toobin’s words, which I have highlighted above. Toobin finds fault with Roberts for not citing a host of prior cases in his analysis and implies that this is somehow evidence that there are no grounds for finding the Affordable Care Act unconstitutional. This nugget of reasoning has managed to miss, entirely, the issue before the Court – this was an unprecedented piece of legislation which was a case of first impression for the Court, and thus the Court had no prior cases which were on point. The primary issue raised by the challengers was that the individual mandate’s justification under the Commerce Clause was something never attempted before and beyond the pale. For Toobin to ignore this fact speaks to an inability to process opposing arguments.
Later in the piece, we get to the true and fundamental problem of liberal jurisprudence. Toobin, after stating that Roberts’s tax argument was flimsy and unpersuasive as a basis for upholding the individual mandate states “it led to the correct results. Any port will do in a constitutional storm.” That last sentence sums it up more neatly than I ever could, and it is disgusting.