July 14, 2015, 12:00 pm
By Matt Schlapp, founder and chairman of the American Conservative Union
Chief Justice John Roberts put himself forward for the wrong job. He now acts more like a senator than a judge.
At a time when President Obama is trying to change the very idea of what is considered reasonable in American politics, it is imperative for conservatives to stand up and bring some sense to this progressive chaos being war-roomed out of the oval office.
The need for principled conservatives to stand up is especially true on the federal bench, where judges get the fair bargain of lifetime tenure, which protects them from the ill effects of being politically unpopular, in exchange for taking an oath which asks them to do the hard thing. This tough calling is especially true for originalist conservatives on the Supreme Court, who often have to write or concur with judicial opinions that do not necessarily match the political outcome they would prefer. Conservatives of character on the nation’s highest court are our constitutional chaperones, reminding us that in the end no matter how much we want to lead society into a better place, the role of the Court is to simply rule on the constitutionality of a given government policy. For some reason “conservatives” who are appointed by Republican presidents too often forget this very simple job description, as they forget the answers they give under oath in the Senate during their confirmation hearings.
The Supreme Court’s decision upholding Obamacare in the King v. Burwell decision shows why it is so dangerous and destructive for Justices to act outside the Constitutional framework and to act as politicians rather than jurists. While most Americans continue to dislike Obamacare and wish the Supreme Court had taken appropriate action against the unauthorized conduct of the Obama administration, our nation should be even more concerned about the Court’s power grab and its creation of a brand new judicial standard which is abhorrent to our system of checks and balances.
It was once unimaginable to most people to think that Chief Justice John Roberts would contradict so sharply the image he portrayed at his confirmation hearing. For example, under oath he explained, “You don’t look to legislative history to create ambiguity. If the text is clear, that is what you follow, and that’s binding. And you don’t look beyond it to say, well, if you look here, though, maybe this clear word should be interpreted a different way.”
It was that John Roberts whom most Americans trusted to preserve the integrity of the U.S. Constitution. Instead, like President Obama’s unprecedented “executive actions,” Chief Justice Roberts has usurped the power of the Legislative Branch by creating a new authority for the Court to rewrite—rather than to interpret—statutory laws to achieve particular policy outcomes. Whether out of hubris or contempt for the American people, Justice Roberts and the majority of the Court have articulated a new role for the judiciary; it can now function as judge, legislature and king.
Obamacare’s architects (Professor Jonathan Gruber, Obama, then-Majority Leader Harry Reid and then-Speaker Nancy Pelosi) thought they could force reluctant Republican governors to create state-based insurance exchanges, but the law’s rollout proved otherwise. Over two-thirds of governors found the overwhelming mandates of Obama’s healthcare overhaul too much to handle, and 33 governors thumbed their noses at Professor Gruber and chose unsubsidized federal insurance exchanges.
In King v. Burwell, Justice Roberts made it clear that he believes it is the Court’s responsibility to re-write the Affordable Care Act to ensure its survival. Even though the law’s wording was clear on the distinction between state and federal exchanges, Justice Roberts and the five justices who joined him disgraced their office, sprayed graffiti on the Constitution, and pushed America toward a constitutional crisis. For the notorious liberals on the Court, last week’s decision is not a surprise.
But Justice Roberts swore under oath that he would not “create ambiguity.” He swore that he would honor the clear text of a statute and find it binding. Additionally, when Justice Roberts was appointed by President George W. Bush, he promised to stand by the Constitution and strictly adherence to the letter of the law. He promised the same to the U.S. Senate and to the American people. He did not tell the truth and instead betrayed his oath to uphold the Constitution. He has lost the trust of the American people, done serious damage to the integrity of the Court, and harmed the separation of powers that has protected our liberty for over two centuries. Justice Roberts ultimately ended up acting like a corrupt politician, using the power of his office to achieve a political outcome as if they were negotiating a backroom deal in a smoke-filled room.
At a minimum, the Senate should haul him into a hearing room to give an account of his actions. Any other person is forbidden from committing perjury while testifying before Congress, why should our Chief Justice be held to a different standard? Certainly the 15 federal court judges — including a Supreme Court Justice -- have been impeached by Congress were required to do more than merely explain themselves.
On the highest court in the land, the bench that is tasked with defending our Constitution and ensuring our laws are faithfully protected, we are left with just three honest justices: Samuel Alito, Clarence Thomas, and Antonin Scalia. The other justices have brought shame to the Court and defied the American people who placed their trust in them. Each would have probably made lousy politicians, thank God, and I mean that literally, each of them realized that they had a different role to play. It was not to win a popularity contest, nor be the latest conservative slouching forward to listen to the siren song from the Georgetown set. Instead they simply live by their oath and the Constitution, which is made up of words -- words that have meaning -- no matter how badly Roberts and Kennedy try to bend them.
Schlapp is chairman of the American Conservative Union.