I was just on the Glen Beck show on GBTV and had occasion to note that Chief Justice John Roberts’ opinion in the Obamacare case was familiar to me. It turns out that Roberts adopted a similar activist rewriting of the parties’ arguments in Northwest Austin Municipal Utility District v. Holder.
Most people just call it the “MUD” case, but it provides some clarity about what happened last week in the Obamacare ruling.
In MUD, a small utility district in Texas was challenging Section 5 of the Voting Rights Act as unconstitutional. (Shelby County, Alabama, and Texas are currently doing the same thing). Section 5 requires governments in 16 states, including the tiny MUD, to have every election related change approved in Washington under the Voting Rights Act. If you move a polling place, Washington must approve. If you change the method of election, Washington must approve.
The MUD sought to have the law declared unconstitutional.
Roberts, writing for the Court, avoided the question. Instead, Roberts used a sleight of hand in MUD that he did last week — he rewrote the parties’ arguments. In MUD, Roberts held that the MUD was eligible to “bailout” of the statute. I won’t detail the complicated bailout provisions here (you can read them yourself in the case I link to above), but suffice to say that nobody thought the MUD was entitled to bailout of Section 5 because the MUD did not qualify under the clear language of the statute.
DOJ didn’t think the MUD was able to bailout, and neither did the MUD.
But John Roberts did. He rewrote the arguments, and the law, and thereby avoided the constitutional question of whether the Court would strike down the Voting Rights Act. He declared the MUD fit for bailout in a way that none of the attorneys working on the case thought was plausible.
Roberts did include an admonition that Section 5 was constitutionally suspect. But MUD was decided years ago and in the meantime, thousands of jurisdictions have spent millions of dollars complying with a statute that is probably unconstitutional that the cautious Roberts Court was unwilling to declare as such.
I have previously written that Roberts’ approach flows from the strain of conservative jurisprudence that has been harping about “legislating from the bench” for decades. This mantra comes from conservatives shell-shocked by the judicial activism of the 1970s, including Roe v. Wade.
When you hear Republican politicians warn about “legislating from the bench,” they are using rhetoric from two decades ago when courts advanced a leftist agenda in the absence of legislative activity. The term today is as archaic as parachute pants and AMC Gremlins. These days, legislatures are passing leftist legislation that exercises unconstitutional power. In that circumstance, it is up to the courts to defend the Constitution. Today, the Court flinched from that obligation, in part because of decades of conservatives repeating the empty and now obsolete admonition against “legislating from the bench.”
Justices like Scalia, Thomas and Alito are more interested in protecting liberty than protecting the Court. They are more interested in upholding the Constitution than they are insulating the Court from leftist criticism.
When I hear Republican politicians crow about “legislating from the bench,” I cringe. That’s a battle from two decades ago. These days, the Constitution needs to be defended, even if it takes the flexing of judicial muscle.
Let’s hope Mitt Romney promises to appoint judges who defend Constitutional liberty, not judges fighting fights from decades ago.