Perhaps a better explanation is that Roberts was engaging in pushback against people turning to the courts for what they should be trying to get Congress to do, effectively treating the judiciary as a third house of Congress. Several former justices have complained about that, and in reaching so far to defer to Congress he is sending a signal to Congress and the people that they should stop neglecting their duty to get Congress to comply with the Constitution.
It comes down to money. As expensive and uncertain as litigation can be, it still takes a lot less money to take a case to the Supreme Court than it does to get a bill passed by Congress or an amendment adopted to the Constitution. A position can sometimes prevail in court on its merit, but merit carries little clout with Congress, which is buried by countless demands on its attention. On the other hand, the Supreme Court feels it can take only about 80 cases a year of the 8000 cases that seek a decision, whereas Congress can typically pass more than 20,000 separately justiciable legislative provisions a year that are mostly unconstitutional, more than 100 times as many as the courts could decide. For the people to supervise all this would be more than a full-time job for every citizen in the country. That is a crisis in constitutional governance.
Now I don't think that kind of strategic signaling is what judges should do. Their duty is to say what the law is, fiat iustitia ruat cœlum. That means adopting a doctrine that all congressional legislation and other official acts are to be presumed to be unconstitutional unless proved otherwise beyond a reasonable doubt. That means overturning more than 500 precedents beginning with McCulloch that expanded federal power or denied a right of an individual against the exercise of such power.
When the Supreme Court sustains a right they are usually correct, and when they sustain a government power they are usually wrong. Those wrong decisions need to stop.
Let us hope the next president can place some libertarian constitutionalists on the Court. Imagine if only two of the liberals were replaced by someone like Randy Barnett, Richard Epstein, Elizabeth Price Foley, Kurt Lash, Gary Lawson, or Rob Natelson.
See also:
- Proposed Bills — The way to reform.
