John Roberts, the Man Who Would Be Chief

Following Chief Justice John Roberts’ opinion upholding the constitutionality of the Affordable Care Act (“Obama Care”), there was a media storm seeking to explain why he did what he did. This media eruption extended across the board – columnists of every stripe, scoop reporters citing anonymous inside sources, media outlets across the spectrum – some hailing Roberts, others vilifying him, some scratching their heads, others shaking theirs.

When there is this kind of press frenzy, it is important we not lose the forest for the trees. The big story is this: No one was expecting what Roberts did, and his opinion does nothing to explain it. Everyone comes away wondering What’s the real story? No one accepts Roberts’ opinion at face value, for his opinion makes it impossible to do so. According to Roberts, the Affordable Care Act’s individual mandate (requiring all to purchase health insurance or face a fine) is a penalty, not a tax, for purposes of the Anti-injunction Act (which would have precluded the Court from considering Obama Care), but it is a tax, not a penalty, for purposes of the Constitution. The fact that the Affordable Care Act calls the individual mandate assessment a penalty (no less that 17 times) is determinative for purposes of the Anti-injunction Act, but matters not a wit for purposes of the Constitution. The individual mandate assessment is unconstitutional under the Commerce Clause because it targets non-activity and fundamentally changes the relationship between the government and the citizen, but it is constitutional under the Tax Clause even though it targets non-activity and fundamentally changes the relationship between the government and the citizen.

Such casuistry is not typical of Roberts, nor of the conservative justices in general. One must normally go to the progressives to learn about the “penumbra” of the Constitution or about how a right not mentioned at all (“privacy,” for example) takes precedence over a right expressly guaranteed (“life,” for example). But in this case, Roberts’ opinion has the makings of a progressive masterpiece. It contains enough reaching, contorting, and hair splitting to satisfy a medieval monk, let alone a modern progressive. As a result, everyone takes the outcome of Roberts’ opinion seriously, but no one takes the opinion itself seriously. The Obama administration was quick to say with a wink, “It’s really not a tax; it’s a penalty.” And the effort of some Republicans to take the new found “tax” and hang it around Obama’s neck fell flat because everyone knows it isn’t a tax. And when you read Roberts’ opinion, you know he knows it isn’t a tax.

So what explains Roberts’ opinion? When in doubt, follow the currency. What was promised, and what was paid? In this case it was legacy. Within hours of Roberts’ opinion, Harvard Law Professor Laurence Tribe hailed: “Chief Justice Roberts comes into his own and saves the Court while preventing a constitutional debacle.” Tribe compared Roberts to John Marshall, “our greatest chief justice,” and Roberts’ opinion to Marshall’s opinion in McCulloch v. Maryland, one of the most famous opinions in U.S. history.* An avalanche of accolades followed heralding,“The Roberts Court is born.”** That’s legal lingo for “a star is born.” And judicial stardom is exactly what was promised beforehand, coupled with warnings of ignominy if the Affordable Care Act was not upheld. Tribe and others put out a drum beat of articles ahead of time warning that overturning Obama Care would prove the Court was politicized, thus further eroding its tattered reputation and the public’s teetering confidence. But while Roberts may have bought some esteem for himself and the Court, he will quickly learn that esteem from progressive opinion bullies is a “pay as you go” proposition. Having given in to the bullying once, he will face twice as much in the future. This is a lesson Roberts should have learned in middle school: pandering to the in-crowd buys you a crumb of temporary attention at the expense of confirming you as a permanent wannabe.

The bottom line is that Roberts jobbed the Constitution to justify a statist end. That that statist end wasn’t his personal objective matters nothing, as he will soon learn. Nevertheless, some conservatives celebrated because Roberts upheld the individual mandate under the Tax Clause instead of the Commerce Clause. Such celebration is as silly as it is sad, for progressives care not by what means their statist vision is achieved. “Commerce Clause, Tax Clause — whatever!” To progressives, Roberts’ opinion means one thing — Obama Care will achieve its underlying purpose which is to do what Roberts said it would — fundamentally change the relationship between the citizen and the government. How Roberts justified this in his poor, conflicted, conservative soul is irrelevant. Roberts’ tortured inner workings matter to progressives only insofar as they provide an opportunity for similar manipulation in the future.

In truth, progressives have no corner on public perception, but they do control the official expression of it. Real public perception is quite different and goes largely unexpressed on the national stage, for those who comprise the vast majority of the public own no stage to express it on. The public perception we hear so much about is a contrived tool progressives use to control conflicted conservatives like Roberts. Indeed, the only justices ever conflicted over the perception of the Court are conservatives. Progressive justices happily implement their social agenda. Their sleep is sweet. They not only look at themselves in the mirror, they smile.

So in the end, the man who would save the Court has turned it into a soap opera. Move over Young and Restless — make room for Robed and Desperate.

* http://www.scotusblog.com/2012/06/chief-justice-roberts-comes-into-his-own-and-saves-the-court-while-preventing-a-constitutional-debacle/

http://www.thedailybeast.com/articles/2012/06/28/chief-justice-john-roberts-ruling-restores-faith-in-the-court-s-neutrality.html

** http://www.huffingtonpost.com/adam-winkler/the-roberts-court-is-born_b_1634070.html