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Carl Kanowsky: Like it or not, the justices were just doing their job

Posted: July 12, 2012 5:37 p.m.
Updated: July 12, 2012 5:37 p.m.

The pastor of a local church got a call last night from one of his parishioners who is a tow truck driver.

The driver frantically asked, “Father, a lawyer, a politician and a Supreme Court justice drove a Cadillac into the lake. Who do I save first?”  Without skipping a beat, the minister replied, “Why, the Cadillac, of course, my son.”

I promise that I will not start every column out with a lawyer joke (even though it is a fertile field). But, with the recent health care decision, it seems that all justices make a fair target.

As you’ve likely heard, Chief Justice John Roberts was good friends with Justices Anthony Kennedy, Samuel Alito, Clarence Thomas and Antonin Scalia. The four believed that they could depend on Roberts to steer the supreme ship always to the right. The last week of June 2012 disappointed them mightily.

At first, however, it looked like cause for celebration for opponents to Obamacare. CNN reported, with significant intensity and glee at having scooped the story, that the justices had thrown out the individual mandate (you know, where everyone is required to have health insurance). 

Then, a few moments later, with a gross of eggs on its collective face, CNN decided to actually read the decision and then report that the individual mandate had been upheld.

While a majority of the court ruled that the Health Care Act violated the Commerce Clause of the Constitution, Roberts, along with four of the so-called liberal justices, did rule the individual mandate was constitutional as a tax.

As Roberts explained, the taxing power in the Constitution is fairly broad, allowing for the mandate to stand.

There has been much conjecture about how Roberts really felt about the law. There are rumors that he initially voted to find the law unconstitutional but changed his vote due to pressure. But regardless of whether Roberts views the mandate as a wise move, he clearly believes that it is not the role of the court to sit in judgment of congress’ decisions. 

As Roberts wrote: “The framers created a federal government of limited powers, and assigned to this court the duty of enforcing those limits. The court does so today.

But the court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”

As I have written before, this is the role of the judiciary. It is not to pass value judgments but to determine if the proposed law abides by the fundamental principles that forged our nation.

Apparently, the conservatives were upset that Roberts went the way he did. They filed a lengthy dissenting opinion, much of which is well-written and reasoned. But some aspect of this entire intrigue truly angered Antonin and the gang. He wrote: “The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril. Today’s decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it.”     

Regardless of how we feel about health insurance, it is over-reaching to brandish one side as placing “liberty at peril.” We should debate the merits (or lack thereof) of the law, not engage in hyperbole. I doubt that anyone will lose their freedom simply by virtue of the health care law.

The history of America is full of instances where folks predicted that a particular course of action meant certain doom for our nation. Starting with the decision in Philadelphia in 1776 to break ties with Mother England.  Then to abolishing slavery. Followed by allowing women to vote.

We resisted entering WWII until Pearl Harbor because so many people predicted nothing but doom and gloom from us messing with European affairs. Opening up schools and the work place to everyone on an equal footing was done with real foreboding.

There are numerous other examples but the point remains — we are a strong, resilient nation because we face change and adversity. We work those into our system so that we become a better country. We may have different opinions, but that does not mean one side is morally better than the other — it’s just different.

Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by e-mail at or online through his law firm at Kanowsky’s column represents his own views, and aThe Signal. Nothing contained herein shall be or is intended to be construed as providing legal advice.


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