Randy Barnett and John Yoo, in addition to their specific reactions to the Obamacare decision (read part 1 here), offered some larger perspective on constitutional advocacy. Yoo also plunged into some observations about the chief justice:
Given the Supreme Court’s reticence about overturning legislation, d o conservatives need to reorient themselves away from constitutional arguments and toward policy arguments and electoral victory?
RB: Yes and no. Yes, the candidates need to stress what bad policy Obamacare is and obtain an electoral mandate to repeal it. But, as I alluded to already, we need a president and senators who will reject the “saving construction” approach to upholding laws in favor of upholding the Constitution. This decision should be a litmus test for future nominees: Do you agree with (1) the four conservative justices who would have invalidated the whole law, (2) the four liberal justices who would have upheld it, or (3) Chief Justice [John] Roberts, who split the baby to give each side something it wanted? No one who picks option 2 or 3 should be nominated or confirmed.
If what results from this decision, and the way it was reached, is the repeal of Obamacare politically, and the selection of real constitutional conservative justices, then this case will have marked a turning point in constitutional law akin to what 1837 was for progressives.
JY: While a disappointing loss for both the economy and the Constitution, Sebelius contains an important lesson for conservatives. They cannot rely on the federal courts to save them from the ever-expanding liberal welfare state. Placing all of their eggs in the judicial basket led conservatives to forget the most important forum for making their case: the political process. The only way left to defeat Obamacare is for conservatives to win not just the White House, but also the House and Senate this November. The Supreme Court is not the place 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,” the majority declared. “It is not our job to protect the people from the consequences of their political choices.” That is one thing that Chief Justice Roberts got right.
What impact will Sebelius have on Roberts's legacy?
JY: It will be one of the defining cases of the Roberts Court. I hope it does not define his chief justiceship, as the single case of Dred Scott v. Sanford (which threw out Congress’s power to control the spread of slavery in the territories and helped precipitate the Civil War) defines the chief justiceship of Roger Taney. Roberts is still a young man, as Supreme Court justices go, and he may have two decades before him of challenging cases involving race, abortion, religion, new technologies and the separation of powers (I no longer include federalism in that list after Sebelius). Roberts may well hope that a decision like Sebelius early in his tenure will be little noticed, nor long remembered, by the time he retires. But if Sebelius ends the efforts of Chief Justices [Warren] Burger and [William] Rehnquist to return some sanity to the balance of power between the federal government and the states, and simply opens the floodgates to the expansion of the welfare state, then it will be the defining case of his chief justiceship.
Who is the best and worst chief justice, in your view?
JY: Chief Justice John Marshall is the greatest, because of the recognition of judicial review for the first time in Marbury v. Madison and his work to place the national government on a firm setting in cases like McCullough v. Maryland (finding the national bank to be constitutional) and Gibbons v. Ogden (reading the commerce clause broadly – but not as broad as Sebelius). I am not arguing that Roberts is wrong simply because he expanded federal power – Marshall was a great leader at the time for doing exactly that. Where Roberts erred is in failing to find balance and acting out of political tactics than constitutional principle. This brings me to the worst chief justice, Roger Taney. In Dred Scott, he also put politics ahead of constitutional principle. He believed that the court could settle the great debate over slavery and ignored clear evidence from the Framing that freed blacks could assume the rights of full citizenship. Now the difference is he struck down the Missouri Compromise and made it more difficult for the states to negotiate a political settlement to slavery in Congress, while Roberts upheld the federal law on health care and left the issue to the political branches. But Taney’s belief in his own political statesmanship helped set the country on the course that led to the terrible break of the Civil War. That should serve as a cautionary tale about putting political calculations before the Constitution..