I‘m not Herzog is the kind of guy you can expect to take apart a car, put it back together, and say “Here is how you improve this.” Like just about everybody else, he has an opinion or two on the Roberts decision.

I thought your follow-up post on the matter was quite good (but then you are the great and powerful Czar!) I do find the psychoanalyzing of Roberts anoying as well as the hatred directed at the man. I think he made a really bad decision but as you say in your post (and in your comment over at my blog) he had his reasons and now we have to move forward and deal with it through democratic means (vote for Republicans who will repeal and replace).

By the way, on the subject of stare decisis, I’m definitely a radical in the sense that if I think a decision was a bad one in the first place, I don’t care how many years have passed, I want the Supremes to get it right. And I think you are correct about the New Deal — I’m quickly reading up on the key cases and this article is very, very helpful for laying the groundwork.

But this case didn’t even need to test Congress’ taxing power — as many have already noted, Roberts had to essentially rewrite the bill to make it a tax for legal purposes to make it Constitutional. This is what those of us who don’t like the decision find so risible (because we all know that if Obama and/or the Democratic Congress had proposed a tax in the first place to fund the ACA it never would have passed!!!)

P.S. As usual, Ramesh has some interesting things to say about the decision and its conservative defenders.

Well, you’ve done your homework Herzog; we are indeed the Great and Powerful. The Czar is most curious about this meme about Roberts rewriting the law. Judges can and do give benefit of the doubt to the intent of a law as one of their functions for interpretation.

But wait! Speaking of interpretation, check out this awesome letter from Operative JN, who is exactly the sort of person you want in your corner. Ready?

The Czar of Muscovy,

Two little observations about your recent “Knock it off” post. First, the line “Whether you agree with it, the procedure was done in strict accordance with the Constitution.” Maybe. The Constitution does not specify, to my knowledge, the Supremes are the binding authority on what the Constitution means. The idea that the Supremes get to make the final call is a product of a Supreme Court decision (Marbury v. Madison), of which I’m sure you are aware. I think “the procedure” was done in accordance with the tradition of Constitutional interpretation, but maybe I’m straining at a gnat when I distinguish between the Constitution and what various Courts have held it to mean. But I believe that just as the citizen jury is the ultimate arbiter of the fairness and applicability of all laws via jury nullification, so too the citizenry itself, and not the Supremes, are the ultimate arbiter of the meaning of the Constitution.

The second observation is related. I particularly liked Roberts’ line “It is not our job to protect the people from the consequences of their political choices.” I believe it is the job of the People to decide how they want to live, and ultimately the Supremes cannot overrule the will of the People. The job of the Supremes is to add some hysteresis to the political system so the people can be sure they are getting the change they believed in and voted for. Roberts threw the issue back to the People–rightly, in my view, because we should not depend upon the Supremes to safeguard our Republic from itself. We as citizens cannot bet the Republic on the decisions of 5 unelected Members of the Supreme Court. We citizens should take responsibility for safeguarding our Constitution and our political institutions by our decisions at the ballot box. The call to do so has never been more clear.

All the best.

JN

The Czar thinks JN has it exactly correct, and indeed the first observation about the role of the SCOTUS as the “binding authority” (or not) is indeed based on Marbury. As a theoretical matter, the American people can decide whether or not that is true; on a practical, legal matter, the Czar has no idea how that might be enacted.

First, Supremes are notoriously reluctant to contradict themselves. If some whacko Justice in 1823 said that Yellow is Blue in an opinion, you would see some Green references in a 2012 decision. To be less silly, if Justice Cardozo in 1937 stated that a welfare program was constitutional as a tax, you might not be surprised if Justice Roberts in 2012 uses that as precedent for establishing legality. Indeed, this seems to be the very flight path Roberts took.

Getting a Supreme Court to ease up on Marbury might not be so easy; after all, the debate over how far Congress can go with a tax is hardly new in 2012; it was not even new in 1937! This exact debate is at the core of a famous feud between Madison, Jefferson, and Hamilton, and these guys were there in 1789 when the Constitution was written. Even they argued over this.

Hamilton would have certainly sided with Justice Roberts. Thomas Jefferson, we can safely say, would have been one the side of dissent. James Madison, however, would have pulled a Chris Christie: the mandate is both a tax and penalty, and should be struck down.

Where the heck were we. Ah, yes: in order for the Supreme Court to move away from judicial review, there would need to be an opinion written in a judicial review that suggested the Supreme Court had no business doing a judicial review since it was not in the Constitution. This seems unlikely.

Second, it would take a long time to get at least 5 justices in place who might be willing to consider the matter of judicial review. As you say, exactly, “We as citizens cannot bet the Republic on the decisions of 5 unelected Members of the Supreme Court.”

The Czar agrees with you; rather than blame Justice Roberts, or indeed any of the members of the Supreme Court, the problem is with us. We the People put morons into Congress, and We the People saw President Obama skate into office with no presidential acumen. This is our fault.

We may have started to fix this in 2010, but need to really take 2012 seriously. We might be able to kill Obamacare with a Republican House and Senate (through defunding and reconciliation, respectively), but a Republican president as well is momentarily essential for full repeal. Two scary things: Mitt Romney does not seem to have a solid plan to replace this with a free market solution (despite a bunch of great solutions being put forth), and—most critical—what the heck do we do with an all-Republican Congress and Presidency after that? All GOP Congress and Presidency: not always a great track record.

The point is—and perhaps yours as well this Independence Day—is the American public’s own political ignorance and willful stupidity got us into a very serious mess. We cannot afford this anymore. We need to take responsibility for what we did, and accept responsibility to prevent further catastrophes like this.

Guard, protect and cherish your land, for there is no afterlife for a place that started out as Heaven.

The Czar of Muscovy

Божію Поспѣшествующею Милостію Мы, Дима Грозный Императоръ и Самодержецъ Всероссiйскiй, цѣсарь Московскiй. The Czar was born in the steppes of Russia in 1267, and was cheated out of total control of all Russia upon the death of Boris Mikhailovich, who replaced Alexander Yaroslav Nevsky in 1263. However, in 1283, our Czar was passed over due to a clerical error and the rule of all Russia went to his second cousin Daniil (Даниил Александрович), whom Czar still resents. As a half-hearted apology, the Czar was awarded control over Muscovy, inconveniently located 5,000 miles away just outside Chicago. He now spends his time seething about this and writing about other stuff that bothers him.