Did John Roberts’ unwillingness to overturn legislation cause Donald Trump’s nomination?
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That’s the novel theory being put forth (independently I guess) by Randy Barnett and Ilya Shapiro:
The vast majority of constitutional law scholars don’t believe Obamacare violates the Constitution, but never mind that. The far loopier claim is that John Roberts, of all people, upheld Obamacare because he doesn’t believe in striking down democratically-enacted laws. This is the same Roberts who provided the deciding vote to gut the Voting Rights Act, to overturn decades-worth of campaign finance laws, and to strike down gun control legislation, to name just a few of the many cases in which Roberts has shown no hesitation to overturn the decisions of political majorities. . .
Leave aside that this supposed unwillingness is, as noted above, completely fictitious. How delusional do you have to be to believe that a significant number of the people voting for Donald Trump are doing so because they are upset about the theory of judicial review John Roberts employed in the Obamacare case? This is such an obviously preposterous idea that to restate it is to refute it.
The American right has been throwing a six-year-long temper tantrum about the passage of Obamacare. It’s hardly surprising that part of the right’s strategy for attacking the law has been to cook up a bunch of “creative,” i.e., dubious, legal arguments about how the law is supposedly unconstitutional. That, after all, is how the legal-political game is played in this country.
Do people like Barnett and Shapiro actually believe their claims that a series of highly technical (and again, highly dubious) legal arguments failed to overturn that law because John Roberts values democracy more than a correct interpretation of the Constitution? Furthermore, do they really believe that widespread anger about this supposed preference is what has led to Donald Trump’s impending nomination?
Because if they do, that’s actually crazier than Trump’s nomination itself.