The Right Opinion

Judicial Betrayal

By Thomas Sowell · Jul. 3, 2012

Betrayal is hard to take, whether in our personal lives or in the political life of the nation. Yet there are people in Washington – too often, Republicans – who start living in the Beltway atmosphere, and start forgetting those hundreds of millions of Americans beyond the Beltway who trusted them to do right by them, to use their wisdom instead of their cleverness.

President Bush 41 epitomized these betrayals when he broke his “read my lips, no new taxes” pledge. He paid the price when he quickly went from high approval ratings as president to someone defeated for reelection by a little known governor from Arkansas.

Chief Justice John Roberts need fear no such fate because he has lifetime tenure on the Supreme Court. But conscience can be a more implacable and inescapable punisher – and should be.

The Chief Justice probably made as good a case as could be made for upholding the constitutionality of ObamaCare by defining one of its key features as a “tax.”

The legislation didn't call it a tax and Chief Justice Roberts admitted that this might not be the most “natural” reading of the law. But he fell back on the long-standing principle of judicial interpretation that the courts should not declare a law unconstitutional if it can be reasonably read in a way that would make it constitutional, out of “deference” to the legislative branch of government.

But this question, like so many questions in life, is a matter of degree. How far do you bend over backwards to avoid the obvious, that ObamaCare was an unprecedented extension of federal power over the lives of 300 million Americans today and of generations yet unborn?

These are the people that Chief Justice Roberts betrayed when he declared constitutional something that is nowhere authorized in the Constitution of the United States.

John Roberts is no doubt a brainy man, and that seems to carry a lot of weight among the intelligentsia – despite glaring lessons from history, showing very brainy men creating everything from absurdities to catastrophes. Few of the great tragedies of history were created by the village idiot, and many by the village genius.

One of the Chief Justice's admirers said that when others are playing checkers, he is playing chess. How much consolation that will be as a footnote to the story of the decline of individual freedom in America, and the wrecking of the best medical care in the world, is another story.

There are many speculations as to why Chief Justice Roberts did what he did, some attributing noble and far-sighted reasons, and others attributing petty and short-sighted reasons, including personal vanity. But all of that is ultimately irrelevant.

What he did was betray his oath to be faithful to the Constitution of the United States.

Who he betrayed were the hundreds of millions of Americans – past, present and future – whole generations in the past who have fought and died for a freedom that he has put in jeopardy, in a moment of intellectual inspiration and moral forgetfulness, 300 million Americans today whose lives are to be regimented by Washington bureaucrats, and generations yet unborn who may never know the individual freedoms that their ancestors took for granted.

Some claim that Chief Justice Roberts did what he did to save the Supreme Court as an institution from the wrath – and retaliation – of those in Congress who have been railing against Justices who invalidate the laws they have passed. Many in the media and in academia have joined the shrill chorus of those who claim that the Supreme Court does not show proper “deference” to the legislative branch of government.

But what does the Bill of Rights seek to protect the ordinary citizen from? The government! To defer to those who expand government power beyond its constitutional limits is to betray those whose freedom depends on the Bill of Rights.

Similar reasoning was used back in the 1970s to justify the Federal Reserve's inflationary policies. Otherwise, it was said, Congress would destroy the Fed's independence, as it can also change the courts' jurisdiction. But is it better for an institution to undermine its own independence, and freedom along with it, while forfeiting the trust of the people in the process?

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20 Comments

Dioneikes in Colorado said:

The SCOTUS should not have to show deference to ANY administration, the only thing they should pay close attention to is THE FOUNDERS' INTENT when interpreting the CONSITUTIONALITY of any legislation. Thanks, John Roberts for the shaft job and caving into the liberals. I hope you won't mind when pissed off patriots show up on your doorstep with a few questions.

Tuesday, July 3, 2012 at 8:19 AM

BlueShadow in Texas said:

Nice reasoning. Nice philosophizing. Now, let's get on with the only things that really matter at this point: Getting Obama out of the White House and electing a solid majority in Congress.

Tuesday, July 3, 2012 at 8:21 AM

Ct-Tom in NC replied:

Right! It is not the Supreme Court's job to protect the citizenry from their own folly. If folks reelect the Dems and Obama, democracy will have done its job and the republic proceeds in its demise. The power to defeat Obamacare is in our hands. It's just laziness to expect the Court to correct bad, even horible, legislation. That's why we vote.

If the electorate wants socialism, then socialism it is. God help us and our blessed republic.

Tuesday, July 3, 2012 at 8:51 AM

Oathkeeper Scott in Texas replied:

'If the electorate wants socialism, then socialism it is.' *Horse hockey.* A 51% majority doesn't get to 'elect' tyranny for the 100%. And a SCOTUS *should* protect us from our own *folly*.

This is why 'democracy' always descends into tyranny. This is why we're a Republic and the word 'Democracy' is nowhere in our Founding Documents. We have soooo lost our way.

Tuesday, July 3, 2012 at 3:53 PM

Army Officer (Ret) in Kansas replied:

Oathkeeper is EXACTLY correct. The founders went to great pains to establish a representative republic and NOT a democracy. We've come a long way. Initially the most "democratic" branch of the government was the U.S. House of Representatives, and even that only involved democratically-elected representatives. Senators were appointed by state legislatures. Members of the House and the Senate had different constituencies: the House served the interests of the people and the Senate served the interests of the sovereign states. Each did so proportionately: that is why House seats are apportioned by population while each state has the same number of Senators. Nobody voted for president except the members of the Electoral College.

The 17th Amendment took the greatest deliberative body in the world and turned it into a smaller, lopsided version of the House of Representatives. Although the Electoral College still exists, we now vote for the president by name rather than for electors. Note that Supreme Court justices were nominated and confirmed by the two LEAST "democratic" political entities: the President and the Senate. The House of Representatives has never had anything to do with choosing SCOTUS members. That made the Judicial Branch the one LEAST effected by democracy - the very essence of the Supreme Court's job is to protect the Constitution from tyranny and democracy.

Let me say that again - the very essence of the Supreme Court's job is to protect the Constitution from tyranny and democracy.

I was on a brief trip overseas last week. When I left the U.S. was still a representative republic, and I wondered what it was that I returned to. Now I think I know. Since the Supreme Court has declared that it will defer to the political branches even in the face of something so OBVIOUSLY unconstitutional as ObamaCare, we have now lost the final thing that made us a republic - we are now a representative democracy.

Ancient Athens tried something like this, and they started with a small population in a confined geographical area and a population that shared a common religion, language, and culture. They even restricted the vote to men who had a military obligation. Even with all that it ended with blood in the streets. We have none of those advantages. God help us.

Tuesday, July 3, 2012 at 5:52 PM

Rod in USA said:

Bravo! Totally on point!

Justice Roberts betrayed:
- his oath
- the Constitution
- the people of the United States (present and future, unborn)
- his integrity and honor (sorry, but they are gone, never to be recovered)

In Japan he might be contemplating a ceremony with himself and a sharp object about now. What a disgrace.

Tuesday, July 3, 2012 at 10:48 AM

JJStryder in Realville said:

Roberts is no judge. He is an executioner.

Tuesday, July 3, 2012 at 10:56 AM

JG in Oklahoma said:

As always Dr. Sowell, you bring clarity, common sense, and the morality of our First Principles to the forefront of the discussion. Well said Sir... Well said.

To expound a bit on your 'village idiot' vs. 'village genius' I would like to quote T.S. Eliot, who said; "Half the harm that is done in this world is due to people who want to feel important. They don't mean to do harm -- but the harm does not interest them. Or they do not see it, or they justify it because they are absorbed in the endless struggle to think well of themselves."

As you, I suspect the Chief Justice may soon be visited in the middle of the night by his own conscience whispering "Betrayer" in his ear.

Tuesday, July 3, 2012 at 11:15 AM

sfj in Alabama said:

Well, it is after all the foolish voters who elected the vermin that wrote and passed this legislation. While I had hoped this abomination would be struck down I wasn't surprised when it wasn't. Roberts had it right when he said it wasn't up to the court to save us from bad political decisions.The morons who voted for this fraud we have as "president" are the problem.

Tuesday, July 3, 2012 at 11:47 AM

MajorStu in Peru, IN said:

Let them rail. The Framers and Founders established separation of powers to create friction and checks and balances to prevent this time of collusion between the presumably co-equal branches of government. If Congress has the inclination to ignore precedent, enumerated powers, Federalism, and the Bill of Rights, SCOTUS has every duty and responsibility to smack it down. Sure, they'll cry and wail, like the spoiled children they are, but when children get disciplined, they will learn where the line is drawn and improve their behavior. Unlike former Speaker Pelosi, when questioned about the Constitutionality of Obamacare, incredulously asked, "Are you serious?". Yes, Ma'am, we are, and that is one of the reasons you are the former Speaker.

Tuesday, July 3, 2012 at 12:28 PM

DJ in Traverse City said:

As a result of Obamacare we will have a new governmental institution: instead of a Bureaucracy we will have a Barackracy. A governmental entity created by a chief executive who ignores the Constitution, ignores the will of the people, disregards Congress and the separation of powers, and takes over an entire industry as a means of implementing progressive ideology.

Tuesday, July 3, 2012 at 1:07 PM

Robert A. Hall in Des Plaines IL said:

I’ve read all the conservative opinion pieces saying that Chief Justice John Roberts is playing a brilliant long game, that the 5-4 decision upholding ObamaCare is good for conservative principles, etc. My gut tells me that the decision is a disaster for America, for individual liberty, and for our efforts to head off the coming fiscal collapse. But fair is fair. Congratulations to President Obama on his clever deception of getting through the largest, most regressive tax increase in history, after solemnly promising that people making under $250k wouldn’t pay a dime more in taxes. I will link to this from my Old Jarhead blog.

Robert A. Hall
Author: The Coming Collapse of the American Republic
All royalties go to help wounded veterans
For a free PDF of my book, write tartanmarine(at)gmail.com

Tuesday, July 3, 2012 at 1:32 PM

Peter in Nevada said:

Every columnist in the PP fold has opined on Justice Roberts' astonishing behavior. This is the clearest with the least tortured reasoning. Also - "What does the Bill of Rights seek to protect the ordinary citizen from? The government!" - Simple, clear, fundamental, absolutely true and not to be forgotten.

Tuesday, July 3, 2012 at 2:05 PM

veteran in calif said:

I wonder if Justice Roberts even read the whole obamacare travesty

Tuesday, July 3, 2012 at 2:18 PM

Orf in Pennsylvania said:

This is just another explanation of Roberts' brilliance in his decision. Why cannot you see the obvious reason that Roberts' changed his mind? The Chicago thugs were brought to DC. A simple offer Roberts could not refuse would be sufficient to change his mind. Like, "Wouldn't it be a shame if your wife (or child) had an accident?" What would you do if you were the Chief Justice who was given such an offer? Call the cops or the FBI?

Tuesday, July 3, 2012 at 2:23 PM

kent chandler in Marydel, Md said:

I am one of those taxpayers that does not think that any federal Judge/Justice should be appointed to a lifetime position without the voters periodically approving their continuance on the bench. I propose that one third of all federally appointed Judges/Justices (yes-that includes the SCOTUS) names appear on the ballot for the area/district that they represent every two years. Each Judges/Justices name would be followed by a simple Yes or no question "Should this Judge/Justice remain on the bench?" If the majority says "Yes" then that Judge/Justice remains on the bench for roughly six more years. If the majority says "No" then the President would need to nominate another Judge/Justice within a given amount of time, 120 days or so. After 120 days the Judge/Justice can no longer provide an opinion or be paid with taxpayer funds. When the founding documents were written the life span of a person in this country was around 45 years more or less. Now the lifespan is around 76 years for men and more for women. The founding dads could not have known about an increased lifespan. For an appointed Judge/Justice to remain on the bench for life during 'good behavior' assumes that they have the ability to read and comprehend the Declaration of Independence, the Constitution and supporting amendments as they are written. The sorry state of the republic is obvious proof that they do not and by my opinion that reflects 'poor behavior'! Just a thought.....

Tuesday, July 3, 2012 at 2:28 PM

Tex Horn in Texas said:

@ JG in OK: thanks for the T.S. Eliot quote, for the last part of it defines a liberal. Liberals "...do not see it, or they justify It because they are absorbed in the endless struggle to think well of themselves." Perfect.

Wednesday, July 4, 2012 at 2:38 PM

ChuckL in NV said:

Bravo, Mr. Sowell.

There is a major failure in the Congress and in the media to understand that the powers of the congress are limited to Article 1, Section 8 of the Constitution. There is NO authorization in the Constitution for the congress to provide universal health care, which is not being done by this PPACA regardless of what the Progressives, or the law itself, say, nor to provide universal insurance for anything. Basically, if it can be considered "Welfare" then it is not authorized for implementation by the federal government. This power is reserved to the states or to the people.

Then we have the argument about whether the "mandate" is a tax or a penalty. This is not a problem to those of us with reasonable interpretations. Any method of generating funding for a government entity is a "TAX".

Tax
Tax Tax (t[a^]ks), v. t. [imp. & p. p. Taxed; p. pr. & vb.
n. Taxing.] [Cf. F. taxer. See Tax, n.]
1. To subject to the payment of a tax or taxes; to impose a
tax upon; to lay a burden upon; especially, to exact money
from for the support of government.
[1913 Webster]

Monday, July 9, 2012 at 1:35 PM

ChuckL in NV replied:

Addendum to my post.

The founding Fathers did not believe that the power to tax was to be universal or without limit. Among the documentation for this comment are "The Federalist Papers".

Monday, July 9, 2012 at 1:38 PM