Scott P. Richert 
Brief Thoughts on a Justice Bork(Comments Off)
Those who mourn the Senate’s failure to confirm President Reagan’s nomination of Judge Bork to the U.S. Supreme Court make the undeniable claim that a Justice Bork would have been different from a Justice Kennedy. But the real question is how different, and in what ways?
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Stand My Ground
Purchasing a house in a city with double-digit unemployment and some of the highest property taxes in the country may well be a definition of insanity. Buying such a house on foreclosure, unable to make the purchase contingent on the sale of your current home, undoubtedly is.
Re: Roberts Is No Warren
I certainly understand Mr. Oliver’s point, but I’m afraid he has misunderstood mine. Do I think that John Roberts has a burning desire to impose a “radical social agenda” on the country? No. But his unprecedented expansion of Congress’s power “to lay and collect Taxes” has given Congress a new tool to do just that.
Mr. Oliver writes that Roberts’ opinion is “very narrow,” but the implications of the opinion are not. And it’s hardly a defense of Roberts to say that “he saw the writing on the wall that some form of universal health care is inevitable” and ruled as he did to avoid “damag[ing] the legitimacy of the Supreme Court, his Supreme Court in particular.” Notice what’s missing? Any concern for the constitutionality of the law itself.
Mr. Oliver is convinced that Chief Justice Roberts will do the right thing on “gay marriage”; Tom Piatak has already explained why that is by no means certain. But let’s take it a step further: If Roberts ruled as he did yesterday because he “saw the writing on the wall” and wanted to preserve the “legitimacy” of “his Supreme Court,” why does Mr. Oliver think that such concerns won’t apply in the case of “gay marriage”?
A footnote: Mr. Oliver sees “gay marriage” coming before the Court in a case involving the Equal Protection Clause, but the first cases filed in federal court, and thus the first cases likely to come to the Court, invoked the Full Faith and Credit Clause. That’s why I have argued—as far back as 2004—that there is a strong possibility that the Court will rule in favor of “gay marriage,” and that, if it does, it won’t be surprising to see at least one “conservative” justice join in the majority. If I had to predict which one, I’d choose the man who today was quoted as saying that he hopes that “his Supreme Court” will be remembered for doing “our job according to the Constitution, of protecting equal justice under the law.”
Can’t Get Fooled Again
In Earl Warren Rides Again, I wrote:
Roberts portrays his decision as a check on federal power—if the Court had upheld the individual mandate under the Commerce Clause, it “would open a new and potentially vast domain to congressional authority.” But it’s unclear whom he thinks he is fooling.
Silly me. I should have known the answer: He thought he’d fool the entire conservative movement. And it looks like he’s right. Pretty much every mainstream conservative group or publication has offered a variation of this post at The Weekly Standard‘s website:
[T]he Roberts Court put real limits on what the government can and cannot do. For starters, it restricted the limits of the Commerce Clause, which does not give the government the power to create activity for the purpose of regulating it. This is a huge victory for those of us who believe that the Constitution is a document which offers a limited grant of power.
The author ignores the fact that “the Roberts Court” (that is, Roberts, Ginsburg, Breyer, Sotomayor, and Kagan) also expanded the power of Congress to “lay and collect Taxes” beyond anything ever claimed before. Rather than noting that Congress can now force any American citizen to purchase something he does not desire or need simply by levying a a tax on him if he does not,
he even tries to make lemonade out of Roberts’ declaration that the penalty imposed by Congress for failure to purchase health insurance is “legally a tax”:
Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.
Who cares that Congress has just been granted total power over how you choose to spend your money—at least Mitt and the rest of the Republicans can start cranking out those campaign ads!
Those who want to provide cover for Chief Justice Roberts or for the Republican presidential candidate who has promised to “nominate judges in the mold of Chief Justice Roberts” will undoubtedly keep referring to the supposed limitation of the Commerce Clause. But that’s a lot like applauding a murderer for not stabbing his victim with a knife because he blew him away with a cannon.