Chief Justice John Roberts is the most hated man in the United States of America today. He will be hated forever by strict constructionalists, but he will not be hated by conservatives reasonably versed in Supreme Court rulings, they will simply dislike him. After all, Justice Roberts is on solid Constitutional ground.
Most people have never heard of James Kent. He was a professor at Columbia University Law School after which he became chief justice of New York’s Supreme Court. Law students are introduced to him early in their schooling, then forget him as soon as possible. They shouldn’t, and it appears justice Roberts didn’t.
In his introduction to a lecture delivered in 1794, professor Kent stated, “It is regarded…as an undisputed principle in American Politics, that the different departments of Government should be kept as far as possible separate and distinct.” Which is another way of saying, in this country we have three branches of government which are supposed to keep out of each other’s fundamental business. The Legislature legislates while the Executive executes while the Judiciary adjudicates. Ever since John Marshall established the principal of judicial review in Marbury v. Madison, the system has been such that the supposedly co-equal branches were expected to respect each other’s territory only to cross boundaries when one or the other seriously stepped out of line.
As onerous and offensive as Obamacare is, neither the President nor Congress stepped out of line in their fundamental duties when structuring and implementing it. One could argue they tested the limits of their respective authorities, but they were nevertheless doing their jobs. And though Ginsberg, Sotomayor, Kagan and Breyer can all be lumped into a category of political jurists who have little respect for the Constitution, Roberts’ decision cannot be held in so little regard as theirs.
The history and tradition of our American system of government is such that the Supreme Court has, for the most part, been loath to……………..
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