“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions…Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
—-Chief Justice John Roberts, in the introduction to his majority opinion in the case of National Federation of Independent Business et al. v. Sebelius, which upheld the Affordable Care Act on the grounds that the so-called “individual mandate” was a tax, not government-mandated commercial conduct.
The Chief Justice’s statement is what is called dicta, commentary in a Supreme Court opinion that is neither binding on future courts nor a substantive part of the decision. Dicta, however, often has great influence in shaping future cultural consensus, and we can only hope that the Chief Justice’s wise and ethical words stick.
He is talking about process and accountability, and what is necessary for our democratic republic to work, and, frankly, survive. Reading letters to the editor and web site comments about yesterday’s decision, I find the overwhelming civic ignorance and “the ends justify the means” obsession of the vast majority of the writers more than depressing. The Supreme Court decision did not “vindicate” the Democrats and President Obama—only positive outcomes from the law they rammed through the system using every obfuscation and trick in the book could begin to do that, and even then it might be impossible, at least from an ethical standpoint. The Supreme Court’s decision raised the serious question of whether the law was passed under false pretenses, a tax disguised as something else so as not to call attention to its violation of the President’s promise not to raise taxes on the middle class. Once the Affordable Care Act began traveling through the courts, the Administration began suddenly calling the individual mandate a tax—a term that was not used in the 2500 page law itself—because it recognized that its Commerce Clause rationale for the individual mandate was shaky. Some courts found the bait-and-switch cynical and offensive, and refused to consider it. The bait-and-switch was offensive, or should be to citizens who believe that the public should know the truth about the laws Congress passes, but Roberts properly held that it isn’t up to the Supreme Court to protect the public from the curs, liars and knaves they regularly elect to high office because “character doesn’t matter.” In a democracy, this is the public’s job. We are accountable. The Supreme Court doesn’t exist to protect us from our own laziness, lack of principles and stupidity. It exists to make sure that if our elected officials pass lousy, ill-considered and un-read laws that roll the nation ever closer to a national diet of moussaka, at least they did it within the bounds of the Constitution. If We the People decide to tolerate cynical, dishonest, incompetent leaders and representatives and the nation ends up like Stockton, California, well, at least one branch of government did its job to make democracy work.
In the end, it will have been the people who failed to uphold their part of the experiment. That’s what the Chief Justice was saying.
I wonder if anyone is paying attention.
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Source: National Federation of Independent Business et al. v. Sebelius
Graphic: Linda Life
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Ethics Alarms 
No, most are not.
“And as things fell apart,
nobody paid much attention…”
-David Byrne, Talking Heads
This is a crucial admonition from Chief Justice Roberts, though I would estimate that less than 1% of the population will read it or know about it, or that the media will cover it in any way. It also proves that Roberts recognizes full well that we are a nation of lazy morons who buy into stupid mottoes; do not care that we continue to re-elect unethical, sometimes criminal, representatives only because their names are familiar and not because we have knowledge or actual concern about their records or what they stand for; and that we believe anyone who tells us we should support anything they say is in our best interest, whether we understand it or not. Our representative democracy depends absolutely on an INFORMED ELECTORATE, and we don’t have one.
Roberts and everyone else, of course, would disagree with me, but we’re getting closer and closer to the time when we need not an elected government but a philosopher king. And not incidentally, Obama and his ilk are on the opposite pole from this concept: they are egotists enthralled with their own power, and and, when convenient, outright liars, who do the country only harm — nationally and internationally.
Too bad the Supremes are appointed for life. Perhaps Roberts would do the nation more good if he resigned and became as a news analyst and commentator… at least he would be heard.
Elizabeth – most politicians are egoists and George W Bush was one of the worst – taking us into two unpaid wars, costing us almost 4,000 casualties and creating the DEPRESSION we are in now… We need a true representative govt – not the Corporatocracy we have now… And Roberts’ decision and opinion, in my opinion, are deliberate – to get the right ignited and even more energized so that our Corporatocracy will get even stronger under Remoney
Silly political rant…don’t do this. 1) Yes, leaders are all egoists. 2) Yes, the wars should have been paid for. 3) Whether or not one agrees with the decision to go to war with Iraq, there were good faith reasons to do so. 4) The Afghanistan War was unavoidable, unless you stand for the proposition that foreign powers should be able to attack the US on its own soil and kill civilians without a forceful response. Yes, it should have been paid for. Leave it at that. Otherwise, you sound like an idiot. And if the 4000 discouraged other attacks on US soil by terrorist sponsoring governments, it was absolutely worth it. 5) George Bush did not cause the economic meltdown. No President causes depressions. The causes were many, various, bi-partisan and complex, but I’m sure its simpler to blame one leader than to actually bother to understand what happened.
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It is possible that, 30 years from now, this may be the most quoted passage from a Supreme Court decision. Dicta like this can often resonate in ways that make the outcome less important than the reasoning, which is not a bad thing.
Note that this is not an endorsement of Robert’s reasoning. I find it extremely utilitarian and generally insubstantial. But it isn’t implausible, or blatantly lawless, and in the end, we must remember that Supreme Court justices are people, too.
Amen to Chief Justice Roberts. May the Supreme Court continue to interpret laws as only it must and can, and the consequences of the laws the court interprets be what they may – and shall.
I might sound optimistic there; I am not. Time for justice to prevail in the laws of the U.S. of A. has run out, I believe. The SCOTUS is one new appointee away from becoming merely one more political theater.