Tag Archives: Chief Justice John Roberts

Why Do We Only Complain About 2/3 Of Government

We libertarian-minded people often complain that presidents are ruining our nation or that congress are passing unconstitutional laws infringing on our rights. But oddly, you rarely hear complaints about the Supreme Court.

They work just as much as congress does, and with Obama’s golf game in high gear, it seems like they likely work more than him. So why is it that people complain ad nauseam about congress  and the president, yet give SCOTUS a pass?

Golfer-In-Chief: President Obama
Golfer-In-Chief: President Obama

We all know about National Federation of Independent Business v. Sebelius, where Chief Justice John Roberts famously provided the majority decision to treat the Affordable Care Act’s penalty as a tax, therefore accepting the legislation as constitutional, despite the fact that Sebelius’ side specifically argued it was to be a penalty and not a tax.

The administrations reason for calling it a penalty was largely political so that Obama would not be deemed as a willing participant in raising taxes on all Americans, including the poor.

So why would SCOTUS rule in such a way as to effectively rewrite law?

Supreme Court of the United States Chief Justice John Roberts
Supreme Court of the United States Chief Justice John Roberts

Sadly they shouldn’t have—the Constitution is quite clear. I accept that the idea of questioning SCOTUS from my layman’s Constitutional perspective seems mighty ambitious, but the Constitution enumerates quite clearly that the Supreme Court’s duty is to adjudicate laws on the basis of their constitutionality, in so doing, setting precedent for lower courts to follow.

Writing law is strictly the job of Congress, and therefore Roberts and the majority. were out of line. They should have just rejected it as it was, and let congress rewrite and repass it in a more Constitution-friendly form.

A million other op-ed writers have elaborated on this case well enough that I feel any opinion I would write would be redundant, so I am instead going to focus on the idea that much of our ire at government in general should be directed at SCOTUS.

First things first, let’s look at their oaths of office. (Yes, there are two.)

The Constitutional Oath

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.  So help me God.”

The Judicial Oath

“I, _________, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.  So help me God.”

If we break this down, it is clear that their personal opinions shall be suppressed, and rulings should be given solely based on what is contained in the Constitution and U.S. law.

Chief Justice Roberts Being Sworn In
Chief Justice Roberts Being Sworn In

There are two potential views on this. There are absolutists who feel the Constitution must be adjudicated as written. That rulings should be based solely on the verbiage of the Constitution, not what SCOTUS justices believed the legislature meant when writing it.

Others believe that the Constitution is a living document where justices are free to rule with the Constitution as their guide, but have license to issue judgments based on what they feel the framers of our Constitution may have meant. But this interpretation essentially allows for SCOTUS justices to rule however they want, so long as they can fabricate some story, no matter how ridiculous it may seem, to align their opinion with the framers’ intentions.

But clearly this makes the Constitution virtually irrelevant if we think this way, as it essentially means that SCOTUS is only limited by individual justice’s imaginations.

For example, in McGowan v Maryland, Sunday closing laws (blue laws, as they’re known) were challenged as a violation of the 1st amendment; the argument being that they were clearly a law establishing religion.alcohol1[1]

However, the courts ruled that the law was secular in nature and these communities were simply enforcing a day of rest. They ignored that the chosen day was Sunday, which aligns with Christian dogma, and contradicts Jewish dogma, infringing on the Jewish people’s own rights to work on Sunday.

If the justices had been absolutists, the law would have unquestionably been struck down with its clear religious underpinnings. But those who held this decision instead opted to find a way to allow it, despite the Constitution’s concise forbidding of laws establishing religion, because at the time, Christian opposition to overturning such longs would have been quite great. All people want to be loved, including Supreme Court justices I guess, their oath-of-office be damned.

Since the Constitution doesn’t address absolutism versus interpretationism specifically, sadly SCOTUS justices may take either tact at any time.

I find this notion troubling as it seems clear to me that the Constitution’s framers did not intend for this by virtue of the way the Supreme Court is set up.

The 1st Amendment
The 1st Amendment

Firstly, the Justices are appointed, not elected. Then once appointed, they are never reelected or reappointed; they’re a Supreme Court Justice until they retire, do something criminal, or death does them part.

The purpose of this is to ensure that they never make a decision based on popular opinion, nor make a decision based on what the legislature or the president who may have appointed them might want.

If Justice Sotomayor for instance, were to rule against Obama in every constitutional challenge he were to be involved in, despite the fact he appointed her, there is no recourse he has. Once she’s confirmed, her decision shall not affect her job status whatsoever. It’s the only true way that she makes her decisions, no matter how unpopular that decision may be, with sole regard to the constitutionality of it—assuming they adhere to their oaths.

This is the very point of the Constitution in general. Many forget we are not a democracy, but a republic. We have our Constitution, and thus SCOTUS, to protect the rights of the minority from the majority. By definition, there is no point in SCOTUS’ nor the Constitution’s existence, if government is simply to side with popular opinion.

The Supreme Court Of The United States
The Supreme Court Of The United States

So the very act of considering congress’ or the people’s opinions when ruling on the constitutionality of something is a violation of the Constitution’s core principles. So in National Federation of Independent Business v. Sebelius, it was not the majority opinion’s right to essentially work with congress and the people to find away to allow an unconstitutional law.

While this was a landmark case, the fact is, this reasoning should apply to a majority of laws in the United States. The Tenth Amendment alone should be grounds for striking much of federal legislation. It states as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

This essentially states that unless the law in question is of a subject matter that the Constitution defines as a federal issue, or forbids the states from legislating on, the law must be a state issue, or a matter between the people.

NHTSA (National Highway Traffic Safety Administration), the EPA (Environmental Protection Agency), and the DOE (Department of Education) are all effectively precluded via the Tenth Amendment. Where does the Constitution mention traffic, the environment, or education? (Hint: It doesn’t).

So while we lambaste congress and the president for violating our rights, let’s not forget that SCOTUS has the ability, and more importantly, the duty under the Constitution, to be the last line of defense of our rights—something they don’t seem to take too seriously these days. If anyone should know better, it’s them. Their forbidding of cameras in the courtroom, and rare amount of interviews given have kept them out of the limelight, likely by design. But I say let’s make sure we’re pissed at them too.

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Compromise is bad, Common Ground is good

Gary Nolan (and THE Scrappy Doo)
Gary Nolan (and THE Scrappy Doo)

In Congress, for a bill to become law, the process is quite elaborate. Feel free to see how it works here.

As a bill trundles its way  through Congress, it often becomes an over-bloated piece of…er…legislation that bears little resemblance of the original intent with add-ons that are the result of politicians aiming to improve their chances of winning re-election by telling their constituents, “see what I did for you?”

A most fitting example of pork barrel spending; a $1.8 million rider to the 2009 omnibus spending bill to study pig manure odors in Democrat Senator Tom Harkin’s home district. While this amount is a drop in the bucket to our total federal spending, it makes up one of thousands, and those drops add up.

Senator Tom Harkin-D
Senator Tom Harkin-D

This bill was certainly not of national interest, and as with most federal law, is a clear violation of the 10th amendment, although the Supreme Court seems to have all but forgotten about that one. However, it flooded $1.8 million into Senator Harkin’s district, no doubt garnering him favor. But, Senator Harkin, or even the DNC as a whole, are not alone in this practice—it is common among both parties.

Many people think Congress fight too much among themselves instead of compromising, and therefore nothing gets done, and consider this a bad thing.

While I used to share that sentiment as a child when I was young and ignorant, it wasn’t until I started becoming interested in politics that I realized this was a good thing and exactly what our forefathers intended.

So why would they do this? Because any law is essentially an erosion of one person’s liberty, they wanted to be sure that any bill that made it into law was ultimately something that would transcend a political agenda or partisan politics.

We start from a point of ultimate freedom or anarchy, then add laws as we deem necessary in order to protect people’s rights. If they don’t pass a majority in the House or Senate—gone. If the President vetoes it—gone. If the Supreme Court, strikes it down—gone. The default position should be no law unless a proper case that almost all of us can agree on as to why it should be allowed.

The Supreme Court Of The United States
The Supreme Court Of The United States

On opposite sides of the spectrum, there are politicians like Senator Rand Paul (Doctor) or Senator Ted Cruz (Attorney) who left private practice in the pursuit of a civic duty to restore our country’s liberty. But then there’s our president or the disgraced Anthony Weiner who never spent time in the private sector and who simply always aspired to be part of the ruling class; achieving said goal.

While these two competing ideologies are generally at odds with each other, they certainly agree that murder should be illegal for instance, so passing such a law should be easy, and obviously, such laws exist.

However, when it comes to taxes for instance, they’re generally not going to see eye-to-eye, and a fight will ensue. If the system works as designed, no law is passed through both houses of Congress and/or is vetoed by the President. Or on occasion, overturned by the SCOTUS.

Occasionally, this system breaks down, such as when Obamacare was passed. The Democrats controlled both houses and the White House, but the Supreme Court still had the opportunity to make this right, yet they didn’t. John Roberts, in a peculiar move, opted to find a way to allow the law within the framework of the Constitution by rewriting it as a tax instead of a penalty.

Supreme Court of the United States Chief Justice John Roberts
Supreme Court of the United States Chief Justice John Roberts

He indicated that he didn’t feel like the court should try to violate the will of the people who elected the politicians to enact such a law. But, this decision is infuriating and violates the spirit of the Supreme Court who are there to protect the minority from the majority using the Constitution as their basis—not public pressure.

If the Supreme Court ultimately feels they shouldn’t undermine the will of the majority, then there is no reason for them to even consider the Constitution, they would ultimately just become a third house of Congress or a higher court of appeals.

John Roberts ignored his duty to not consider the will of the majority when our rights as enumerated in the Constitution are violated. Since he’s not susceptible to elections, I will never understand his logic here, but it was clearly disappointing to those of us on the side of liberty.

Yet, this is exactly what the people asked for—a compromise. People claim that the left and the right should work together and compromise in order to get more done, but I couldn’t disagree more.

If I want to go to a football game, and my girlfriend wants to go to the ballet, so we compromise and go to a comic convention neither of us wanted to attend because it’s nothing like football or the ballet, is that a good result for both of us?

Instead, Congress and the president should learn to pass laws in smaller chunks, picking only the things that they agree on, and scrapping anything else. Not compromise; common ground.

Sadly, the president had the power to do something like this by line-item veto, but for reasons I can not understand, the Supreme Court struck it down in Clinton v. City of New York. Their logic being it gives the president too much power against Congress. But this argument makes no sense.

If a law makes it to the president, that means essentially everything in it is OKed by Congress, so if the president strikes down certain parts, what’s left should still be OK by Congress. All the president is doing is advancing liberty in some small way by keeping additional legislation off the books.

If Congress doesn’t like this, they pass laws without all this extra nonsense, and if pork barrel spending is worthwhile, it should pass as its own bill on its merits.

So the next time you see Congress fighting and they cannot seem to find common ground, don’t lament that they can’t seem to compromise, cheer that the system is working as intended.