The Chief Justice Blinks
Last week the Supreme Court shocked everyone by ruling that ObamaCare was constitutional, and while I was fully prepared to hear liberals declare victory in the wake of the opposite ruling, I was shocked to see conservatives pulling the Baghdad Bob routine. How can this ruling be seen as anything except cowardly and wrong?
Baghdad Bob, some of you will recall, was a Saddam Hussein flack who hysterically reported that the tyrant's forces were invincible, even as they were being overrun by Coalition forces. In one memorable moment Bob declared that American soldiers were committing suicide at Baghdad's gates, even as two American M1 tanks are seen in the background.
In a similar vein, scribes George Will and Charles Krauthammer are declaring a kind of 'victory' in Roberts' decision, or at least some sort of clever politicking by the Chief Justice. I haven't read very many Supreme Court briefs, but I slogged through the ObamaCare ruling and it seems Roberts was forced to use the most torturous of logic to justify his decision.
It boils down to whether the individual mandate is a tax or not.
Will, in his column states that "The physics of American politics — actions provoking reactions — continues to move the crucial debate, about the nature of the American regime, toward conservatism. Chief Justice John G. Roberts Jr. has served this cause."
I don't see it. In fact, I see precisely the opposite. Every 'progressive' law that enshrines another government entitlement skews the country further to the Left. Like a tightening screw that does not unwind, the progressives in this country know that the welfare state set us on the path to socialism (and the excessively muscular government it requires) and that universal healthcare is the equivalent to the 'Welcome to Socialism' signpost (population: You).
So how does Will turn this levinbolt decision into a victory? He claims it raised the consciousness of some people, for one. (Kristalnact probably did open some people's eyes about the Nazi Party, I'm sure.) Oh, and Roberts did explicitly state that the Commerce Clause could not be used to force people to participate in commerce. He states, "The court held that the mandate is constitutional only because Congress could have identified its enforcement penalty as a tax."
Yes, but did the Congress identify the penalty as a tax or not? What does the law say? Justice Thomas once remarked on originalism, in which judges are supposed to divine the Framer's intent, that the role of a judge is to note 'what does the law say'. Not what it was meant to do or intend on doing -- what does it plainly say?
The individual mandate is just that -- a mandate forcing Americans to purchase a service, forcing them to engage in commerce. Roberts engaes in some very fancy footwork here -- the Commerce Clause cannot be invoked to compel the creation of commerce, but ObamaCare gets a pass. So Roberts (in the eyes of Will) let Obama win the battle, but not the war.
I say, it is not Roberts' function as a Justice to think in these terms whatsoever. His job is to determine if a law jibes with the Constitution. Political considerations should not be a factor. There's a reason why the female icon of Justice wears a blindfold -- it shouldn't matter who is being judged.
Krauthammer also projects onto Roberts' decision a political cleverness that should be irrelevant. He states, "Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature."
If Roberts came to his decision to preserve the court's legitimacym reputation and stature' then he has failed as the Chief, and as a Justice. The court should above the political fray -- which is why they are appointed, not elected. But Krauthammer continues to suggest that Roberts' decision was courageous. He goes so far as to quote the Supreme Court's judgement on the Florida recount that found in favor of Bush.
"More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5 to 4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president."
The case was straightforward -- Florida election law allowed for a specific span of time to perform recounts and then hand over whatever counts were made. It made no allowance for more time. The ruling was not in a favor of Bush or Gore, but in favor of what the law said.
If this was Roberts' reason for his ruling, that another defeat for progressives would undermine the court's reputation, well, then it's chocolate cake at bedtime for the children, nutrition be damned! I think Roberts' was simply intimidated by Obama. This president has proven himself completely lawless -- he gave an oath to execute the laws of this country. Instead, he decided not to enforce the Defense of Marriage Act and then subsequently exempted an entire segment of the illegal immigrant population from immigration laws.
Perhaps Roberts saw himself in the role of the true mother in the classic Solomonic 'split the baby' test. Obama is ready (perhaps even eager) to split the baby, and Roberts decided to give him the whole baby instead. There might be some honor in that, but there's an undeniable arrogance and cowardice at work as well. Roberts' could have called Obama's bluff and let The-Wide-Awake-Nightmare-President precipitate a constitutional crisis (split the baby). This president has nothing to lose anyway.
But the court has survived such moments before, and would again. It survived FDR's attempts to pack the court with his cronies, and it survived Roe. The ObamaCare ruling was a colossal disaster, and now the future rests in the hands of voters. Our institutions have failed.