|Chief Justice John Roberts, official portrait|
What are we to think of Chief Justice John Roberts’ deciding vote in favor of upholding the manifestly unconstitutional and deeply harmful Obamacare law? Was this some kind of legal move that somehow helps conservatism in the long run, or simply a betrayal of our constitutional liberty? After the Chief Justice’s defense of free speech in prior cases, it is surprising and almost shocking that he should come down on the side of socialism and loss of freedom in this instance.
Roberts’ legal gymnastics defy logic and law. He has seemingly made the unconstitutional constitutional. As a constitutional scholar, in this case he showed no more concern about or knowledge of the Constitution than President Obama does on a typical day. The Anti-Injunction Act states that a tax cannot be challenged in court until someone has had to pay the tax. In this case, that would not be until 2014. As Byron York points out,
Roberts’ sleight of hand drove his conservative colleagues nuts. “The government and those who support its position on this point make the remarkable argument that (the mandate) is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes,” wrote dissenters Alito, Antonin Scalia, Anthony Kennedy and Clarence Thomas. “That carries verbal wizardry too far, deep into the forbidden land of the sophists.”
It’s either a tax or it isn’t.
Was Roberts intimidated by the media and Obama into the decision he made? Dennis Prager quotes CBS News as follows:
As reported by CBS News:
“Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending . . . . They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.“But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public. [“The public” means liberal media and academics]“There were countless news articles in May warning of damage to the Court — and to Roberts’ reputation — if the Court were to strike down the mandate….”
Prager notes that if Roberts voted to strike down Obamacare, this could be seen by liberals as a violation of judicial restraint (as Obama suggested). I say that the Executive and Legislative Branches showed no restraint in writing, passing, and signing this monstrous legislation and, after the Court’s decision, will now show less and less. The Chief Justice ought to be less concerned with how the public views the Court and more concerned with how the Court views the law.
It’s clear to me that something other than legal logic led to Roberts’ decision. Whether it was intimidation, hubris, or something else, he has voted to uphold a bad law, and done it on bad grounds.
Roberts wrote, quoted by Patrick Buchanan in an excellent article called, “John Roberts Makes His Career Move,” “We (the Court) possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
There are cases where this is correct, but this is a very lame excuse for upholding the unconstitutional.
Buchanan’s evaluation is worthy of consideration: “He does not want Anthony Kennedy, the swing justice, to be making history, while he is seen as a predictable conservative vote.
“John Roberts aspires to be a man of history, to have this court known to historians as ‘the Roberts Court.’ And if there is to be a decisive vote in future great decisions, he wants that vote to be his.”
This episode underscores the fact that no entity of government can be relied upon to protect our liberty. The Court had the power in this case to do something about protecting constitutional liberty, but chose not to by upholding an unconstitutional law. God bless the minority who voted to strike down the law.
At least the Court chose (7-2) to protect states from the over-reaching threat to cut off all Medicaid funds if the state chose not to expand Medicaid as the law provides. But that, although important, pales in comparison to the main decision.
If there is any upside, it is only that the conservative base may be energized enough to be united in support of Mitt Romney, and then hold him to his promise to get Obamacare repealed. They should also get to work on replacing weak-sister RINOs who either support Obamacare or have a defeatist attitude about repealing it.
The final power still rests with We the People. We cannot be silent and acquiescent on this issue. Obamacare must go, or with it we’ll soon get full socialist dictatorship with no one in government to protect us from whatever the authorities want to do to us. The Tea Party is needed more than ever. God help us to correct this massive error and save our freedom and our economy. Both are in grave danger now.
Robert J. Guenther, “Guenther: Enough With The Silver Linings.”
Thomas Sowell, “Sowell: Judicial Betrayal.”