Bad day, Mr. Chief Justice? (Photo credit: Wikipedia)
I'm throwing this one out as pure speculation: Does the uncharacteristically peevish dissent by Chief Justice John Roberts in a decision handed down yesterday say anything about the behind-the-scenes battle at the Supreme Court over Obamacare?
Roberts sounded almost Scaliaesque in his dissent from the majority in Armour vs. City of Indianapolis, an otherwise unremarkable case about sewer taxes. Splitting from a majority that included swing Justice Anthony Kennedy (and, curiously, Clarence Thomas) Roberts attacked his fellow justices for refusing to apply the Equal Protection Act to homeowners who paid 10 to 30 times as much in taxes as their neighbors.
"Every generation or so a case comes along when this Court needs to say enough is enough, if the Equal Protection Clause is to retain any force in this context," Roberts wrote.
Substitute "Equal Protection Clause" for "Commerce Clause" and the chief justice's argument starts to sound an awful lot like the one made by people who want the healthcare reform act struck down. The high court is expected to deliver its decision on that case later this month.
In Armour, homeowners who paid their sewer taxes in a lump sum sued after the city changed its method for collecting taxes and forgave any amounts owed by people who were paying in installments. Some people got off paying $308 while others paid $9,278.
The city argued, and the majority on the Court agreed, that this differential treatment still passed muster under the rational basis standard. That doctrine holds that courts shouldn't second-guess laws passed by democratically elected representatives unless they target a specific minority or have no rational basis at all. That second standard is almost impossible to violate and the court has been loathe to invoke the Equal Protection Act in purely economic cases.
Roberts, joined by Justices Samuel Alito and Antonin Scalia, argued there must be some limit on how differently the government can treat two otherwise identical property owners. The city's claim that it would be administratively difficult to send refund checks to the owners who overpaid is belied by the fact it had already calculated the amount each one was due, he wrote.
The city's other argument that giving the money back would be "fiscally challenging," Roberts said, "gives euphemism a bad name."
The City’s claim that it has already spent petitioners’ money is hardly worth a response, and the City recognizes as much when it admits it could provide refunds to petitioners by [tapping other government accounts]. One cannot evade returning money to its rightful owner by the simple expedient of spending it.
It could be Roberts was just having a bad day. Or maybe he was channeling Scalia as a writing exercise. But I find the vehemence of the dissent interesting, especially since it came in an argument over whether the Court should step in and set Constitutional limits on the economic decisions of the legislature. Which Roberts lost. With Kennedy in the majority.
