It is a logical fallacy and a clinical delusion, and the body politic is suffering from both: magical thinking—the false linkage of causal events, in this case between the president and, well, everything. Hence the claim—literally childish, as will be seen—that the president personally as well as his policy in the Middle East are somehow to blame for an eruption of rioting against American targets in that region. The concomitant argument from the Romney camp is that were their man president, the riots never would have happened: a claim that is patently absurd except to those who seriously believe enraged rioters en route to a demonstration halfway around the world actually pause first to ask themselves whether the President of the United States frowns upon their actions.
In the course of his thoughtful discussion of Chief Justice Roberts’ reported change of mind on NFIB v. Sebelius, Mike Rappaport makes what seems, at first glance, to be an unassailable assertion: A justice ought not to consider extraneous circumstances surrounding a decision, such as its effect on his or her reputation. Instead: “The decision is supposed to be based on a justice’s view of the law.”
But closer inspection reveals tension between that premise and the doctrine of judicial restraint, which I recently argued in this space was theoretically but not inherently compatible with the philosophy of originalism that Rappaport, like Justices Scalia and Thomas, espouses. If Federalist 78 is to be believed, a justice ought very much to consider circumstances beyond his or her narrow reading of the law.
Beneath the variegated opinions on health care issued by a divided Supreme Court, a shared subplot lurks: the strange and contentious fate of broccoli in a free republic. The conservative justices utilized the specter of a broccoli mandate to argue that the requirement to purchase health insurance exceeds Congress’ powers under the commerce clause. Justice Ruth Bader Ginsburg, writing for the minority on that issue, was at pains to say the analogy was inapt. Yet all sides are falling prey to a fallacy that illustrates the Court’s lofty self-image as the Platonic protector not just against abuse but against absurdity too.
Call it the reductio ad constitutionatum: the suggestion that a power is unconstitutional if it could be absurdly applied. In political argument, the reductio ad absurdum—questioning a premise by showing that it leads to absurd consequences—is legitimate. In judicial reasoning, though, it is less useful. Its unstated assumption is that the courts exist to protect us against our own acts of silliness—a vast understanding of judicial power. Even Earl Warren might blush.
It was June 1793, a summer of discontent for the nascent opposition in Washington, and Thomas Jefferson had a problem: A political adversary in Virginia was rumored to be contemplating a run for the House of Representatives. Jefferson, concerned that the House provided a powerful perch, hit on the idea of banishing the adversary to a political backwater instead. “Hence,” he wrote at the time, “I think nothing better could be done than to make him a judge.”
It was many years later, but on the question of whether the bench supplied a platform for power, the target of Jefferson’s machinations—John Marshall—laughed last. Still, Jefferson’s assumption that the bench was a political wasteland from which no influence could be exerted illustrates a perspective missing in constitutional considerations over the Affordable Care Act. The question the Court must answer is not merely whether the law is constitutional—the topic of virtually all the questions the justices asked—but also whether that decision is one for the judiciary to make.