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In Defense of John Roberts

There is a tremendous amount of vitriol on these pages and other sites directed at Chief Justice John Roberts for his recent decision in the Obamacare cases. This writer has read and reread the decision, the concurrence and the dissenting opinion. I am still left with the impression that this opinion was, as one writer called it, a “deft decision.” Since Sandra Day O’Connor left the Court, Justice Anthony Kennedy has relished his role as the “swing vote.” Usually when one refers the Supreme Court at any juncture in time, it is called by the Chief Justice’s name- “the Warren Court” or the “Rehnquist Court.” This Court, until now, was more accurately “the Kennedy Court.” Some rhetoric speculated that Roberts wrote this opinion to put his imprint on the Court and that from here on out, there is no doubt that this is the “Roberts Court.”

But, if we go back to 2005 to his confirmation hearing, Roberts made a certain set of promises: a respect for the co-equal branches of government, a push for consensus in rulings, an attempt to reach narrow rulings, respect for precedent, and protecting the integrity of the Supreme Court. The fact is that thanks to the Democratic Party and the Robert Bork confirmation hearings, THEY politicized the Court and caused more harm than, for example, Bush v. Gore caused despite liberal protests to the contrary. I seriously doubt that Roberts deliberately sets off to tailor an opinion around a political agenda, but he is acutely aware of politics. If he followed the former philosophy, then the mandate would have been struck down under the Commerce Clause. The fact it wasn’t is the source of most of the disappointment with this decision. The rest is based an erroneous belief that the power of Congress under the Taxation Clause is somehow enhanced: “They can’t force us to eat broccoli under the Commerce Clause, but they can under the Tax Clause.” The fact is the tax code is full of exemptions, deductions, credits and other “loopholes” that attempt to guide “behavior.” It is what makes the tax code a labyrinth of complexity and thousands of pages. The purpose of a tax code is to raise revenue in a fair, equitable manner. Our tax code is anything but that. Again, more sane voices now realize that in reality and for practical purposes, this decision does not extend the power of Congress under the Tax Clause. Regardless, this opinion DOES place a limit on Congressional power under the Commerce Clause and isn’t that what conservatives wanted all along? Yet, we now bitch because we got our way? This was a game of legal chess between Roberts and Obama and Roberts sacrificed his rook to take Obama’s queen. Voters are now tasked with placing Obama in check mate.

I will admit that part of this decision, because it is now a “tax,” had to dispense with the Anti-Injunction Act. Here, Roberts did use a certain amount of “pretzel logic.” I admit that he did pull some legal monkeys out of his butt to advance the case towards a resolution in 2012 instead of 2014. But, is it really “pretzel logic” when nine out of nine Justices agree with that aspect of the decision? True, there can be nine monkeys on the bench, but it is what it is.

Regarding that confirmation hearing promise to protect the integrity of the Court, part of that is keeping the Court out of politics. Roberts did just that here. Barack Obama now lost a key anticipated talking point in his campaign. The bully pulpit would have been alive and well. Yet, at the same time, he offered Obama’s opponent a key issue in his campaign and elevated the repeal of Obamacare to new urgency. The best way democratically to get rid of an unpopular law is not by the Court striking it down, but through the legislative process.

The accusations circulating that Roberts is some “closet liberal” and that Bush appointed a David Souter-type Chief Justice are laughable. This is the same chief Justice who upheld the constitutional right of individuals, not militias, to keep and bear arms not once, but twice. This is the same Chief Justice who has outlawed voluntary racial integration efforts in public schools, curtailed the power of the EPA in many instances, upheld the Indiana voter ID law, affirmed the right of Arizona to revoke licenses of businesses that hire illegal aliens in violation of federal immigration law, paved the way for state tax credits for private/parochial education in Arizona, upheld child pornography laws, and struck down race-based “quotas” in the New Haven fire department. This is the same Chief Justice who upheld a partial-birth abortion ban a mere six years after the Rehnquist Court struck down an almost similar law. This is the same Chief Justice who in the Ayotte decision made it easier for states to regulate abortion. This is the same Chief Justice who in a short three months will be confronting affirmative action in college admissions, key provisions in the Voting Rights Act of 1965, the constitutionality of the Defense of Marriage Act and possibility the fate of Proposition 8 in California. They will also likely confront head-on the Establishment Clause in the Mt. Soledad case. They have the possible opportunity to severely restrict the expansion of substantive due process in Strutton v. Meade out of Missouri. In a case out of Arkansas, they have the opportunity to severely modify one of the worst decisions in recent history- Kelo v. New London. Although they decided Hamdan and Boumediene, where has that left Guantanamo detainees? Just this term, all pending appeals out of the DC Circuit regarding a series of issues from suspected terrorist detainees were turned down by the Roberts Court. And lest we forget, the top case in the craw of liberals from coast to coast, was decided by the Roberts Court in Citizen’s United which was forcefully affirmed in a per curium decision on Monday where they summarily reversed the Montana Supreme Court’s upholding a state campaign finance law that was basically the same prohibitions struck down in McCain-Feingold, only at the state level. Liberals and Democrats lost a backdoor way to reinstate McCain-Feingold state-by-state. Just last term, liberal Justices on the Court and liberal pundits in the press were complaining that the Roberts Court was too friendly to business interests and was locking the courthouse door to average Joe’s.

Even from the Medicaid expansion aspect of the health care case, the Court placed a limit of the power of Congress. They cannot use this as a penalty to coerce states into doing what the Federal government wants. Make no mistake, this decision placed limits on the so-called “coercion theory” when it comes to federal revenue sharing schemes. It may just open up a whole new line of litigation where the balance of power between the states and the federal government can be evened out more to the advantage of states. That, of course, remains to be seen.

As for those articles and whispers out there about Roberts being on medication, this talk is in the same gutter as accusations of belonging to a racist organization at Princeton or, even worse, pubic hairs in a soda can. One would hope that in one’s disagreement with this decision, people do not climb in the sewer with liberals and Democrats. There are articles, mainly from conservative circles, suggesting there be a retirement age for Supreme Court Justices. There is- its called either death or when they decide to retire. I would prefer an independent judiciary rather than a confirmation hearing every two, three or four years depending on the age of the Justices. Imagine if age limits existed now. Do we really want Obama appointing a replacement for Scalia or Kennedy? These suggestions cut both ways and are as silly as those that suggest we discard the Electoral College and go to the direct popular vote of the President.

Probably the best aspect of this decision is expressed in Eric Erickson’s article this morning. It has reawakened the Tea Party after its midterm election slumber towards political action. This decision will unite the Republican Party and, God willing, end America’s dalliance with socialism under Barack Obama and company. That is where Roberts’ awareness of politics without politicizing the Court is most brilliant.

In another context, Ronald Reagan once said, “Hispanics are Republican; they just don’t know it yet.” To paraphrase: “Conservatives won this case; we just don’t know it yet.”

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