For months, as liberals anticipated the Supreme Court would rule ObamaCare unconstitutional, there has been a constant drumbeat of criticism against what they assumed was a conservative majority that would thwart the president’s signature legislation. In particular, Chief Justice John Roberts was the focus of a great deal of uncomplimentary commentary, with many arguing that by leading the Court to the right he would establish a tainted legacy as a partisan judge who had damaged the institution he led. But within moments of the announcement that Roberts had sided with the four liberals on the Court, the “re-evaluation” of the chief justice had begun.
As the New York Times‘s Ethan Bronner wrote in the paper’s Caucus blog, previously, “He was seen by many, at least on the left, as a right-winger more devoted to conservative politics than the purity of the law. That could change.” Count on it.
The way this process works is that whenever an avowed conservative crosses over to the left,, that person is lionized as attaining a new maturity and transcending partisanship. That was certainly the case with David Souter, whose appointment to the Supreme Court was among the greatest mistakes of George H.W. Bush’s presidency. And now that Roberts has saved President Obama’s bacon, we can expect those negative mainstream media profiles of his Court to be turned into glowing accolades for his respect for precedent and desire to preserve the integrity of the Court.
By contrast, Anthony Kennedy, who had received more than his share of liberal praise in recent years as the left courted the supposed swing vote, will start getting the same abuse that is customary for Justices Scalia, Alito and Thomas, because he joined them in a vigorous and principled dissenting opinion that would have ruled all of ObamaCare constitutional.
Nevertheless, the left’s enthusiasm for Roberts will be somewhat tempered. By ruling that the Affordable Care Act was a tax and therefore constitutional, the chief justice provided the legal rationale the law needed. But Roberts’ compromise was not what liberals wanted. By affirming that the law was a tax, Roberts made President Obama look like a liar because he had pledged it was no such thing. His opinion also meant there was a majority in favor of limiting the reach of the Commerce Clause, a principle conservative legal scholars have vainly advocated for for decades.
But that will provide no comfort for conservatives who understand all too well that Roberts could have joined the four dissenters in a decision that would have brought an abrupt halt to the expansion of the federal government’s power. Liberals do well to rejoice today, as this means a historic opportunity has been lost to restrain the growth of the federal leviathan.
Conservatives will bitterly remember this day and Roberts’ role in it. So, it is little surprise the right-wing blogosphere is bubbling over with bitter reproaches and even some over-the-top calls for the impeachment of the chief justice. Such chatter is a waste of time. But it’s clear that Roberts’ apparent desire to keep the Court out of the political fray has led him to make a decision that will forever ruin his reputation with the right while endearing him to the left.
But if Roberts thinks the left will embrace him the way they did other Republicans who joined the liberals, this will have to be only the first of a series of betrayals of conservative positions on his part. In particular, so long as the landmark Citizens United ruling that protected political speech and invalidated campaign finance restrictions stands, he will continue to be abused (though perhaps not as much as the other conservatives).
Roberts is wrong to think this decision will protect the Court from the kind of criticism it got after Citizens United, because political issues will always be part of the Court’s brief. Nevertheless, what happened today is a reminder to conservatives that liberals have a clear advantage in the judiciary that can only be counter-balanced by victories at the ballot box. Today’s decision can be rendered a footnote to history if a Republican Congress and president are able to repeal ObamaCare next January. But given the desire for some jurists to retain the good opinion of the mainstream media, the right must understand that winning judicial battles is not as simple as winning an election.
Boosh the elder gave us Souter nBoosh the junior gave us Roberts n nJust sayin. No More BOOSHES, and that includes you, Jeb.
Roberts is a craven, contemptible coward who has given the Feds the power to compel us to do anything it desires that we do, unless specifically restrained only by the Bill of Rights. Roberts' tax dodge means the Bill of Rights is the only limitation, otherwise the feds can do anything, compel anything. Roberts has made us slaves, not citizens. What a terrible man. I'm sure he will enjoy the praise from the New York Times.
"Today’s decision can be rendered a footnote to history" n nThere's no way to render this fiasco a footnote. It's a hugely important decision that endorses a breathtaking conception of federal power. That isn't just going away, whatever happens to Obamacare.
Oh, I see, because Roberts has balked at the right-wing diktat for a Supreme Court justice, he must be re-evaluated.
I reject the apparent point of Tobin’s point. Tobin is a sophisticated pundit but here he runs dangerously near to conflating principled legal reasoning. This judge, like the metaphor of the umpire he offered during the confirmation, called the issue as he saw it. The rule is that legislation is presumptively valid. The rule is that if there is a principled basis for upholding legislation, it should be upheld. Roberts ruled “conservatively” in Citizens United and in just recently voting against the Manitoba challenge to its holding. Here he “conservatively” rejected commerce clause grounds and “liberally” upheld the health care law on tax grounds. The scare quotes in these instances are meant to signify their stupidity in characterizing Roberts. The evidence is that he in good faith strives to call cases as he sees them on principled bases. If the reflexive amongst us could stop jerking their knees, they’d see how well off they are with such a principled Chief Justice and they’d honour him for that instead of slagging him. He’s truly doing his job properly.
I reject the apparent point of Tobin's post. Tobin is a sophisticated pundit but here he runs dangerously near to conflating principled legal reasoning and political result. This judge, like the metaphor of the umpire he offered during the confirmation, called the issue as he saw it. The rule is that legislation is presumptively valid. The rule is that if there is a principled basis for upholding legislation, it should be upheld. Roberts ruled "conservatively" in Citizens United and in just recently voting against the Montana challenge to its holding. Here he "conservatively" rejected commerce clause grounds and "liberally" upheld the health care law on tax grounds. The scare quotes in these instances are meant to signify the stupidity in so characterizing Roberts. The evidence is that he in good faith strives to call cases as he sees them on principled bases. If the reflexive amongst us could stop jerking their knees, they'd see how well off they are with such a principled Chief Justice and they'd honour him for that instead of slagging him when they dislike the result. He's doing his job properly.
"It is not our job to protect the people from the consequences of their political choices." n nI'm unhappy about Roberts's decision, but it's worth noting (though the liberal MSM will do its best to gloss over the fact) that even while upholding ACA as constitutional, Roberts basically disses it as bad and harmful law and policy– something from which the voters would want to seek protection. n nAnd as you note, by finding the mandate constitutional only insofar as it's a "tax," he's thereby exposing its framers, supporters, and defenders (including Obama) as arrant liars. n nRoberts is saying: Sorry America, it's not my job to protect you from this monstrosity, even though it was passed under false pretenses. Blame the people you elected. The SC can't save you from ACA– you'll just have to find another way to get rid of it. And for god's sake, vote more wisely next time. n nI still think it's a terribly wrong decision, but I wouldn't say it's written in such a way as to endear him to liberals. Unfortunately, I don't know to what extent this message from Roberts will reach low information and swing voters.
Unfortunately, the bottom line is that Roberts' decision was not based on merits of constitutional law, but on political calculation on how will a decision affect the reputation of the court, and further whether will a decision get "his" court into a political fight with the juvenile loser who has wormed his way into the office of president. nAnd that will be forever be Roberts' legacy.