Did Chief Justice Roberts Put the Court’s Popularity Above the Constitution?
Originally published in Bob’s column, Forbidden Table Talk by Communities At Washington Times
SAN DIEGO, July 6, 2012 — Chief Justice John Roberts’ surprise decision to uphold the Affordable Health Care Act as constitutional has birthed enough hot air explanations to fill every elegant Washington D.C. ball room with wall-to-wall helium balloons.
Some explanations sound more logical than others. Of course, Roberts himself offers no psychological interpretation of his decision. Instead, he presents his rationalization in legalese. We are expected to accept his “wise” observation that the government mandate to buy health insurance is unconstitutional when it attempts to use the Commerce Clause as a green light, but constitutional if we view it as a tax.
Are you following this logic? You should. It’s absolutely brilliant!
You see, the government does not have the right to force its citizens to purchase insurance or anything else. Instead, the government has the right to tax its citizens if they refuse to buy insurance.
Of course, the Obama administration did not sell this monster bill’s mandate to the public as a tax, and it probably would never have been approved by Congress as a tax. After all, candidate Obama had promised not to raise taxes on the middle class.
On the other hand, Obama’s legal representation did call it a tax in front of the Supreme Court while calling it a penalty at the same time. By talking out of both sides of the mouth, the idea was for the court to mark a correct multiple choice answer. Who would have thought the Supreme Court would bite? Obama flip-flops (excuse me, “evolutions”) are expected, but nobody predicted such a song and dance from Justice Roberts. What could he have been thinking?
Explanation One: This reasoning truly makes sense to the sincerely motivated judge.
If such were the case, Roberts would be competing for the most idiotic ruling ever to come down from a bench. Say what you want about our Chief Justice, the man is not stupid and for that reason, Explanation One does not hold up.
Explanation Two: Even people with lifetime appointments care about public opinion. Roberts was losing sleep over the good graces of newspapers such as The New York Times.
According to this theory, he is simply a coward. This would mean we now have a gutless wonder heading the Supreme Court, a situation too depressing to dwell upon. Instead, we’ll mercifully move on to Explanation Three.
Explanation Three: The conventional wisdom asserts that Roberts is concerned about the Supreme Court’s objectivity as far as public perception is concerned. He wants to hold on to his reputation as one who is hesitant to overturn a law of congress, even a law he personally doesn’t like. By desperately seeking to find some means to uphold the law, even reasoning that is a stretch of the imagination, the integrity of the court is preserved and conservatives will be more fueled than ever for the 2012 election. Then, the next time a more conservative law is challenged and taken to the Supreme Court (such as a state made marriage law like Proposition Eight) nobody will be able to accuse Roberts of judicial activism, even if he sides with the conservatives.
Under such a strategy, ObamaCare can still be stuck down in November by the electorate, our public can continue respecting the Supreme Court, and conservatives are free to make future rulings without fear of criticism. Win-win-win!
Although this explanation makes more sense than the others and may indeed be just exactly what Roberts figured out in the caverns of his mysterious mind, it is still full of holes.
For one thing, conservatives will be hated by the liberal elite every time they make a conservative decision, period. Nobody is going to stop and say, “Hmm … We should pay attention to Roberts this time. After all, the man has proven his objectivity already.” How serious is Obama taking the other recent court ruling about an Arizona law which allows police to ask for records when they stop people and report information to ICE? Obama’s contempt for that decision and refusal to cooperate has been made abundantly clear.
Meanwhile, the fact that four liberal justices voted to uphold most of ObamaCare doesn’t seem to make anybody bat an eyebrow. This is because only conservative decisions are viewed as extreme or activist in our Politically Correct world. There is no such thing as an extreme liberal. Liberal justices merely exhibit the “moderate common sense that any thinking person ought to have.”
Still, all politics should be laid aside to make room for the bottom line: Even if Roberts were to succeed in rescuing the Supreme Court’s reputation for objectivity, he was not put in office to protect the court’s popularity. He was put in office to protect the constitution.
Alas, Chief Justice Roberts, this you have failed to do!
Bob Siegel is a weekend radio talk show host on KCBQ and columnist. Details of his show can be found at www.bobsiegel.net
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