Astute as ever, Charles Krauthammer explains why Chief Justice John Roberts sided with the liberals in yesterday’s landmark ruling on Obamacare. Ironically, it is not because Roberts himself is a liberal. Krauthammer explains:
Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature…
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.
Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.
I’m no legal scholar, but I don’t agree with Roberts’ ruling. It seems to me that he strayed from the text and meaning of the statute when he transformed the mandate into a tax. A majority in Congress voted for the individual mandate on the premise that it was not a tax. President Obama himself insisted at the time that it wasn’t a tax. If it were sold as a tax when it was before Congress, it probably never would have passed. I have a high regard for authorial intent, and it seems that Roberts’s ruling runs roughshod over the legislature’s intent.
Having said that, I’m not buying the line that I heard yesterday from many conservatives. Many were accusing Roberts of being some kind of a closet liberal who has just now shown his true colors. That seems far-fetched to me. Roberts has a stellar record as a conservative jurist. It strains credulity to suggest that he’s been faking it all these years so that he could surprise everyone with his liberalism in the biggest case of his career. I think Krauthammer’s theory makes the best sense of the evidence. Roberts was being guided by a conservative impulse both toward the law and toward the institution. I disagree with the decision, but I don’t think it makes him a liberal jurist.