Based Underground is now a conservative news aggregator AND curated newsletter.
(Brownstone Institute)—Chief Justice John Roberts once flipped his vote on Obamacare to appease the DC establishment. Will he capitulate again in Murthy v. Missouri?
In 2012, after oral arguments in Sebelius v. NFIB, the Supreme Court met in a secret conference to determine the constitutionality of Obamacare and its “individual mandate.” Following three days of oral arguments, hundreds of pages in briefing, and hours in chambers with clerks and fellow Justices, Roberts provided the critical fifth vote to create a majority holding that the Affordable Care Act was unconstitutional.
- Preserve your retirement with physical precious metals. Receive your free gold guide from Genesis Precious Metals to learn how.
But the arguments did not cease when the Court adjourned, and the Chief soon dithered under public scrutiny.
Three days after oral arguments, President Obama spoke from the Rose Garden to pressure the Court to uphold his signature legislation. Senator Patrick Leahy, then Chair of the Judiciary Committee, addressed Roberts on the Senate floor weeks later. “I trust [Roberts] will be a Chief Justice for all of us and that he has a strong sense of the proper role of the Judicial Branch.” Newspapers and cable news anchors warned Roberts that if he voted with the majority “his ambition of transcending politics on the Supreme Court will have to be judged a failure.”
The Wall Street Journal took note of this in its column “Targeting John Roberts: the left tries to intimidate the High Court on Obamacare” arguing “We doubt the High Court will be intimidated by any of this, and…no Justice would be worthy to sit on the Court if he is…The Court’s reputation will be tarnished if it bows to the political distemper of the moment, not if it follows the Constitution.” But the editorial staff was wrong.
Chief Justice Roberts flipped his vote in response to the public pressure. CBS reported that “Roberts switched views to uphold health care laws,” writing “Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.”
Supporters and critics agreed that Roberts’ decision was a political calculation rather than a legal determination. In the New York Times, Ross Douthat authored “John Roberts’s Political Decision,” writing that Obamacare was “saved by political considerations.” At National Review, Jonah Goldberg noted, “No one is confident, never mind certain, that Roberts actually believes his own position.”
Now, the Court faces another Democratic president’s unprecedented expansion of federal power in Murthy v. Missouri (formerly known as Missouri v. Biden). Like the Obamacare case, decided in 2012, the decision comes in an election year and features the heavy-handed influence of the medical industry’s lobbying and public pressure campaigns.
On Monday, the Court will hear oral arguments in the case, and the Justices will confront the most pervasive forces in American society: the private-public censorship industry, the influence of the Intelligence Community, and the Biden Administration’s repeated attacks on free expression.
The argument comes just two weeks after President Biden’s targeting of the Court in his State of the Union address and amidst the regime’s demonstrated antipathy for the separation of powers.
May 2020: The Chief Invents a Pandemic Exception to the Constitution
Just two months into the Covid response, the Supreme Court had the opportunity to rebut the government’s tarnishment of the Bill of Rights. The Justices could affirm that our Constitution has no pandemic exception, and cloaks of benevolent phrasing cannot warrant the usurpation of our liberties.
Instead, Chief Justice Roberts suspended the Constitution in deference to “experts,” thus ushering in three years of emergency orders from charlatans and petty tyrants. It proved a turning point in the Covid response, acting as a green light for prolonged church closings, First Amendment violations, and turnkey totalitarianism.
In May 2020, a California church petitioned the Supreme Court to overturn Governor Gavin Newsom’s restrictions on church attendance. The “fog of war” is no excuse for “violating fundamental constitutional rights,” they argued.
Newsom’s order limited attendance at religious ceremonies to 25% capacity with a maximum of 100 attendees, no matter the size of the venue. The State offered no “justification for this arbitrary cap,” the church explained. Retail stores were permitted to hold 50% capacity at the time, and offices, food packaging, museums, and and “every other sector [had] no percentage cap.”
Four members of the Court were able to see through the state’s flimsy pretext of “public health.” Justice Kavanaugh asked, “Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?” Justices Gorsuch, Alito, and Thomas joined Kavanaugh in voting to grant the church’s motion.
The liberal wing of the court – Justices Kagan, Ginsburg, Sotomayor, and Breyer – voted to deny the motion without offering any opinion to support their vote.
The critical fifth vote thus came to the Chief Justice. Roberts sided with Governor Newsom, arguing that the Court should defer to “experts” because the “unelected judiciary lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
Of course, every tyrant has claimed “competence” to control the lives of his subjects. Our Constitution, however, is designed to restrain all men, regardless of self-proclaimed insight, genius, or title, from abridging the rights of citizens.
The Chief’s fifth vote ignored constitutional text in favor of an imaginary pandemic exception to the Bill of Rights. As the head of the judicial branch, his deciding vote suspended judicial review as lockdowns obliterated Americans’ liberty.
The Chief Justice continued his deference to “experts” for over a year despite their demonstrable failures. Two months after the California decision, he again provided the fifth vote to uphold Nevada’s limit of religious gatherings to 50 people, despite the order permitting casinos to hold up to 500 gamblers at a time. Justice Gorsuch explained in dissent: “the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
The death of Justice Ginsburg and the confirmation of Justice Barrett to the Court flipped the 5-4 split, but Chief Justice Roberts continued his pandemic-exception jurisprudence into 2021. In February 2021, he upheld California’s banning on singing in church, explaining that “federal courts owe significant deference to politically accountable officials with the background, competence, and expertise to assess public health.”
In April 2021, he voted to deny Californians’ petition to challenge Governor Newsom’s edict limiting in-home religious gatherings to three households. Justice Barrett, however, overrode his dissent, and the Court restored the petitioners’ First Amendment freedoms.
Unclouding the Fog of War
The Chief Justice has a penchant to capitulate to political pressure. Murthy v. Missouri features perhaps the most powerful and united hegemon that the Court has ever encountered.
Let us hope that the Chief no longer allows the fog of war or fear of political blowback to excuse the deliberate and repeated violations of fundamental constitutional rights.
Alexander Hamilton noted in Federalist, No. 78, “whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”
It is not just the Court’s power to remedy usurpations of our liberty, but it is its duty. The Chief has been derelict in the past, deferring to the capricious whims of political opportunists, but Murthy v. Missouri offers the Chief an opportunity to reaffirm his Court’s commitment to the Constitution.
Published under a Creative Commons Attribution 4.0 International License
For reprints, please set the canonical link back to the original Brownstone Institute Article and Author.
TRENDING ARTICLES
OMG: O’Keefe Media Group Exposes Disney’s “Gender Expression Transitioning” Program
by Liberty One News
On Thursday, O’Keefe Media Group disclosed internal documents that uncover Disney’s Gender Expression and Transitioning programs. The G.E.T. program advocates for modifying one’s natural body, and the documents further expose Disney’s health insurance plans covering genital mutilation surgeries. Per James O’Keefe: REVEALED: O’Keefe Media reveals internal videos and documents exposing…
Track Coach Sues After Allegedly Being Fired For Opposing Policy Allowing Male Athletes In Female Sports
by Daily Caller
An Oregon high school track and field coach filed a lawsuit Thursday claiming he was improperly fired after stating that biological males had an unfair advantage against female athletes. John Parks was fired in June after sending a letter to the Oregon School Activities Association (OSAA) suggesting the regulatory agency…
“They’re Starting Brutal Attacks”: James Carville Says Cackling Kamala’s “Best Day” of the Campaign Is Already Behind Her
by The Liberty Daily
Democratic strategist James Carville on Wednesday declared the “best day” of Vice President Kamala Harris’ presidential run is already behind her. Biden abruptly withdrew from the presidential race on Sunday and endorsed Harris, who is running based on a Democratic Party insider vote with almost no primary voter approval, after…
5 Ways Kamala Harris’s Democrat and Media Enablers Are Gaslighting America
by Breitbart
Vice President Kamala Harris’s Democrat and mainstream media allies are gaslighting American voters in five ways as her presidential campaign gets underway with just over 100 days to election day. The manipulation is being carried out in various forms: the covering up of President Joe Biden’s apparent cognitive decline, claims…
Major Study of 9 Million Confirms COVID Shots Cause VAIDS
by Slay News
An explosive new study, which analyzed the data of nine million people, has sent shockwaves through the scientific community after proving that Covid mRNA shots are responsible for the global surge in cases of AIDS-like vaccine-acquired immunodeficiency syndrome (VAIDS). The peer-reviewed study was conducted by a team of world-renowned South…
The Secret Service Was Obviously Going to Be the Next Vehicle of the Deep State
by The Federalist
Was the assassination attempt a failure because Trump survived? Or was it a failure because he was shot in the first place? The since-resigned Secret Service director conceded before House lawmakers Monday that this month’s shooting of former President Donald Trump was the worst agency security failure since President Ronald…
Emhoff’s Ex Opens up About Kamala Parenting Her Kids
by Headline USA
Kerstin Emhoff, the first wife of Second Gentleman Doug Emhoff, has spoken up about the non-existent attacks aimed at Vice President Kamala Harris for having no biological children. In remarks to CNN on Thursday, Emhoff claimed that Harris has acted as a parent to her children, Ella and Cole Emhoff,…
Illegal Alien ‘Got-Away’ Accused of Killing Nashville Restaurateur Matt Carney
by Breitbart
An illegal alien “got-away” has been accused of killing 42-year-old Matthew Carney, the owner of the Smokin Thighs restaurant in Nashville, Tennessee, in a hit-and-run crash. Ulises Raigoz-Martinez, a 24-year-old illegal alien from Mexico, has been charged with criminal homicide, tampering with evidence, vehicle theft, criminal impersonation, and evading arrest…
Kamala Ran S.F. Program That Helped Illegals Who Were Arrested Avoid Deportation
by Headline USA
As San Francisco’s district attorney, Kamala Harris ran a program that helped illegal immigrants arrested for drug crimes avoid deportation, get jobs, and even have their records expunged. The “Back on Track” program was run by the San Francisco district attorney’s office while Harris was district attorney from 2004 to…
Hamas Lovers Hit New Low in D.C. Protest
by PJ Media
So you saw the latest batch of Hamas lovers burning American flags, releasing maggots, and vandalizing our monuments in Washington, D.C., recently since Israel’s Prime Minister Benjamin Netanyahu visited. My friend Stephen Kruiser discussed it a bit in his latest Morning Briefing, as did Athena Thorne, who went into more…
Congress Ordered Research into Military Covid Shot Injuries
by Infowars
Congress has included a provision in the National Defense Authorization Act (NDAA) for fiscal year 2024 directing the U.S. Department of Defense (DoD) to investigate the negative health outcomes on military personnel following administration of the Covid vaccination. “Study and report on health conditions of members of the Armed Forces…
FBI Director Debunks Biden’s Claim That J6 ‘Gallows’ Were Designed to Hang Mike Pence
by Headline USA
President Joe Biden said in a recent speech that the infamous gallows built on Capitol Hill on Jan. 6, 2021, were “erected to hang Vice President Mike Pence.” That’s a strong claim coming from the sitting—at least for now—leader of the free world. Rep. Thomas Massie, R-Ky., asked FBI Director…
Legal Group Launches Several Investigations Focusing On Kamala Harris’ Record, Use of Campaign Funds
by Trending Politics
“A lot of her tough on crime reputation goes to her prosecution when she was San Francisco DA, individuals who use marijuana and other sorts of things,” AFL President Dan Epstein said in a statement to Fox News. “Our investigation, however, makes it very clear that Kamala Harris does not…
Kamala Harris Once Mocked Trump’s Warning of Terrorists Crossing Through Border
by Daily Caller
Vice President Kamala Harris mocked the idea that a border wall was necessary to keep terrorists from entering the country during a February 2019 interview in New Hampshire. During the sit-down interview with WMUR-TV, then-Democratic California Sen. Harris mocked President Donald Trump’s assertion that a massive border wall between the…
Ultra-Processed Foods Are Harming Children: What’s Being Done About It?
by The Epoch Times
Ultra-processed foods have become a significant part of many children’s diets, and it may come as no surprise that such foods come with a cost. A cross-sectional study published in JAMA in May revealed that children who consumed high amounts of ultra-processed foods exhibited higher body mass index, waist circumference,…
Democrats Urge OpenAI to Allow Government Access to Models Before They Go Public
by Reclaim the Net
Five Democrat senators have penned a letter to OpenAI CEO Sam Altman, as a form of not-so-subtle pressure to commit “to making its next foundation model available to US Government agencies for pre-deployment testing, review, analysis, and assessment.” But, “pre-deployment testing by government agencies?” Are these guys sure this is…
These Important Election Integrity Initiatives Might Be On Your 2024 Ballot
by The Federalist
From voter ID to mail-in voting, these proposed ballot measures could significantly alter the way states administer their elections. While most political pundits are focused on the pending matchup between former President Donald Trump and (presumably) Vice President Kamala Harris, a major facet of the 2024 contest that’s not getting…
News from across the conservative media sphere! Subscribe for free to the brand new Based Underground Newsletter for a daily uncensored recap of the news and opinions that are most important to American patriots.