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Word has been leaking out for a week that Chief Justice John Roberts switched his vote from entirely overturning Obamacare to mostly upholding Obamacare. What changed the mind of a brilliant legal jurist who felt he understood the intricacies of the law when he first voted to uphold it?
Roberts got cold feet about the legacy and “integrity” of the Supreme Court.
The thinking is that the Supreme Court is above the partisan fray and that striking down a law along partisan lines, even if one truly believed it to be prohibited by the United States Constitution, should be avoided in order to uphold the nation’s opinion of the Court as a non-partisan entity.
According to CBS News, Roberts defected to vote with the liberals but sustained a month long campaign by the three conservative justices to change his vote. Interestingly, moderate swing-voter, Justice Kennedy, was the fourth conservative vote and the one leading the charge to change the mind of Roberts.
The story reports that Roberts went so far in distancing himself from the former majority that the now-minority was furious enough to abstain from his Commerce Clause opinion and write an unsigned, joint dissent, dismissing the law in its entirety.
The source of the article, possibly the conservative law clerks of other justices, noticed that after Robert’s initial view that the mandate had to fall (although he remained undecided as to whether it was severable from the remainder), changed his mind at the same time that the Court’s legitimacy was being called into question in the media. Even justices are having trouble believing that Roberts was persuaded by logic. He was afraid of what might happen to his court, were they to overturn this law.
This site (griffinelection.com) has consistently acknowledged SCOTUS’s role as the third of three political branches of government. When we questioned how far judicial review could reach, conservatives insisted that this Supreme Court was the defender of liberty against the tyranny of the legislator and executive. Today, we continue to hold to the position that the power of the Court, though it retains bright spots (think Brown v. Board), remains largely a blithe on the American system or representative government.
This decision doesn’t represent judicial activism in its rawest sense. It doesn’t create judicial language to replace legislative language. It is activism in a different sense. Here, Justice Roberts essentially concedes that there is no way to uphold this law, yet he moves forward in creating a way to fit it in legal parameters even going so far as to re-define the heart of the law in violation of its plain language.
Conservatives have argued on this site that the Court’s role is to act as a neutral arbitrator, to call “balls and strikes” and to be ardent defenders of the sacred Constitution. But last week, Justice Roberts trampled over this view. He engaged in actively searching and finding a way in which he could justify the Court upholding the law. He didn’t call balls and strikes, he picked his favorite team and then looked for every infraction possible to call them the winner. And then, as one pundit remarked, “[Roberts was] an umpire that seemed worried that people from the stands would be hollering at him” and thus changed his call that he had logically determined to be right, in favor of being popular.
Liberals, are hailing the Robert’s decision as leadership even though it is clearly wrong. It is reminiscent of Bush v. Gore when the Court put an end to a circus that had gone on for too long. The decision showed leadership, but it failed to show its authority, legality or fairness to the American people.
Now the right has their Bush v. Gore. The only difference is that this one will ensure bankruptcy of the nation. At least Bush’s wars are coming to an end. Obamatax is unsustainable and will prove so before we even get our current budget under control. If the financial burdens aren’t bad enough, the government can now mandate United States citizens to buy any product, as long as they threaten to penalize the citizen if they refuse. A government that was once for and by the people is now subject to being fined for not taking an active role in buying a product by the government.
As for the Court, we have a 5-4 decision with the Chief’s integrity now in question, a vote of the majority that was a member of the Executive team that pushed the law for an entire year in Justice Kagan, and the moderate swing-vote, Justice Kennedy voting in the minority. That is the cloud of legitimacy the Court now toils under. So much for the integrity of the Court.