That’s the title of Hillsdale College Professor Paul Rahe’s piece at Ricochet on Chief Justice John Roberts’ holding that the Obamacare mandate is a tax and not a mandate, even though Obama and his supporters went to great lengths in arguing that it was not a tax. Rahe thinks that Roberts may have done what he did to avoid the political firestorm the Democrats had promised if the court ruled against Obamacare but at the same time, by labeling the mandate a tax, made it easier for Republicans to repeal it next year. That assumes Republicans hold the White House and a majority in both houses of Congress next year (but less than 60 in the Senate). If the mandate is a tax, Senate rules do not allow a filibuster to either enact or repeal a tax.
There are several other pundits and commentators defending Roberts on the theory that his opinion was a brilliant maneuver to fool the Democrats into thinking they had a victory to celebrate when it’s actually a long-term defeat. These include Glenn Reynolds at Instapundit who thinks Roberts might be playing an elaborate game. He compared the decision to Marbury v. Madison, where Chief Justice John Marshall surrendered in the case before the court while firmly and eloquently reasserting the Court’s right and responsibility to engage in judicial review. Slate marvels at Roberts’ genius in a piece entitled Obama Wins the Battle, Roberts Wins The War. “The chief justice’s canny move to uphold the Affordable Care Act while gutting the Commerce Clause,” brays Tom Scocca of Slate. Then there is Ezra Klein’s The Political Genius of John Roberts holding that “By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.”
Even George Will finds solace in John Roberts’ new membership in the liberal wing of the Supreme Court:
By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”
When Rep. Nancy Pelosi (D-Calif.), asked where the Constitution authorized the mandate, exclaimed, “Are you serious? Are you serious?,” she was utterly ingenuous. People steeped in Congress’s culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle. Now, Thursday’s episode in the continuing debate about the mandate will reverberate to conservatism’s advantage.
Rahe and Will are kidding themselves. Rahe is especially naive in seeing any hope for conservatives in anything coming from Slate or from Ezra Klein at the Washington Post. These men are kool aid drinking liberals who have no use for conservatives or conservatism. They do not want to help conservatives and do not write with pleasure about any conservative victory or advancement. Quite simply, to the extent they claim to believe yesterday’s debacle in the Supreme Court holds any future hope for conservatives they are being disingenuous.
George Will may not be as enamored with Scocca and Klein as Professor Rahe, but his optimism about Roberts new persona ignores one of his own strongly held principles: That Occam’s Razor is almost always correct, the simple explanation for any new phenomenon is the right one. Here the simple explanation is that Roberts caved to Obama’s threats. The simple reality is that the United States Supreme Court is not going to rule against a determined Democratic party. It never has. The Supreme Court supported slavery when it was the Democrat desire that it do so; it supported Jim Crow laws and racial segregation laws because Democrats wanted them; it supported the New Deal because Democrat president Roosevelt threatened it with a court-packing plan; it threw the first amendment in the trash heap when Democrats [plus the Senate fool, John McCain] wanted to make political speech illegal with McCain/Feingold; and it now supports Obamacare because another Democrat president has attacked one of its justices personally and threatened that the Court will lose its credibility if it rules against him.
Conservatives see the Court as a powerful institution, and to them it is because it exerts its power most often for Democrats and especially when Democrats are most determined. Come to think of it, almost every other court in the land does the same thing.
Professor Rahe himself appears to sense the weakness in his thinking that Roberts may made “an act of great cunning,” because he also said, “Given the debate that took place when [Obamacare] was passed, no honest man could think the mandate a tax.”
Final irony: Obama viciously criticized Bush’s nomination of John Roberts to the Supreme Court and voted against his nomination. Now it is none other than a Chief Justice John Roberts who singlehandedly came to Obama’s rescue on the Obamacare case. Does Obama have a photo of Roberts…? Noooo, I better not go there.