Friday, July 06, 2012

Roberts, construction, and bias

Andrew Koppelman

In the recent, extraordinary leak about the internal deliberations of the Supreme Court in the healthcare case, Jan Crawford reports (while leaving ambiguous whether this comes from her leakers) that Chief Justice Roberts was worried about the lack of existing doctrinal support in the challengers’ case. “To strike down the mandate as exceeding the Commerce Clause, the court would have to craft a new theory, which could have opened it up to criticism that it reached out to declare the president’s healthcare law unconstitutional. Roberts was willing to draw that line, but in a way that decided future cases, and not the massive healthcare case.”

Professor John Yoo has told the New York Times that, if the story is true, Roberts has misunderstood his job. “His job is not to finesse the place of the Supreme Court in the political world, in which he and most justices are rank amateurs, but to get the Constitution right first and then defend the institution second.” But this occludes the complexities with which Roberts was faced. New constitutional constructions, of the kind that undergirded the challenge to the mandate, raise deep issues about the appropriate role of the judiciary – issues that go far beyond the healthcare case. Roberts was right to be cautious.

Randy Barnett, the intellectual father of the healthcare challenge, usefully distinguishes between constitutional interpretation and constitutional construction. In his book “Restoring the Lost Constitution,” he notes that “there is often a gap between abstract or general principles of the kind found in the Constitution and the rules of law that are needed to put those principles into action. This does not mean, however, that the choice of rules is unguided by these abstract or general principles.” Judges must create new rules in order to give effect to those principles. “Given the limits of interpretation, construction is inevitable and the Constitution would not long survive without it.”

You can find the rest of this post at, here.

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