When public officials want to gift themselves new powers, they usually justify their expansive actions with their favorite platitude, “for the greater good.”
Conservatives, in their turn, respond with the proverbial warning of the slippery slope.
The problem, of course, is the dynamism of American politics means the powers one party invests themselves with are then available for the next majority, which seizes the precedent and continues to expand federal jurisdiction. In this way, central power burgeons exponentially.
Perhaps the best modern example of this phenomenon is the Patriot Act, passed in the wake of 9/11 to protect the nation’s security. The always grasping hands of federal power destroyed the restraints placed on the security state by the original legislation and created bulk data collection, disturbing not only in its total disregard for civil liberties, but also in its parallelism to George Orwell’s omniscient Big Brother.
This sort of slow creep usually happens primarily through regulation. But in a stunning display of hypocrisy demonstrated by subsequent opinions issued last week, Chief Justice John Roberts demonstrated that this can happen in any part of the government.
Roberts, in writing the majority opinion in King v. Burwell, hypothesized on the intent of the legislature and President Obama in passing the Affordable Care Act and then allowed his decision to be influenced by this outcome:
“A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”
He gave the Court transcendent powers of interpretation. This was not a case of statutory or Constitutional interpretation; it was a case of assessing the intent of politicians and yielding to them.
Then, in his minority opinion in Obergefell v. Hodges, Roberts denounced the powers which had been integral to his rationale of only a day before:
“But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”
Like other legislators who grant themselves powers and then later have them used against them by their political opponents, Roberts is a victim of his own hubris. There is some small sense of justice that the consequences of his unconstitutional actions came back to haunt him so quickly. Unfortunately, it does nothing for the irreparable damage done to the original intent of the Constitution.