Why did John Roberts side with the liberals?

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.


  • Aaron O'Kelley

    If Krauthammer is right, it means Roberts made a decision, not based strictly on the interpretation of the Constitution, but based in part on how the court would be perceived. In other words, he made a political decision in order to avoid appearing political. That does not inspire much confidence in me.

    Yes, it is great that he spelled out clearly that Obamacare is not within the purview of the commerce clause. But as Mark Levin said yesterday, is it really better to say that Congress cannot regulate inactivity but can tax it? How is that in any way a Constitutional principle? It seems to give back to Congress with one hand what it took away with the other.

  • Ryan Phelps

    Krauthammer could be right. But his assertion is speculation, ascribing particular motivation where I think you can’t, at least with much accuracy. There are quite a few people who think (speculatively, for sure) that Roberts is playing the long game (e.g. http://goo.gl/boi92).

  • Paul Jacobs

    If it walks like a duck, quacks like a duck, and looks like a duck, it is a duck. In this case, a tax. Anytime that the government forces me to give them money, it is a tax. While BHO did not bill this as a tax, we all knew that it was.

    Roberts has done us a favor. Either we sit back and take this for what BHO and Company intend, or we get off our butts and vote. I may not be pleased with the alternative, but, Mitt is the best Mormon we have.

  • Ken Temple

    Dennis Prager had a similar comment on why he thought Roberts made the decision he did – the long term perception of the Supreme Court was at stake – he thinks Roberts was motivated by that bigger issue – are they going to be non-partisan or be judicial activists. The left could accuse them of being “judicial activists” the other way if he had ruled with the other 4 to strike it down. As it is, it is forced back into the public square of debate, the people, voting, and the legislature – Roberts exposed it as a “tax” even though Obama kept saying it was not a tax.

    I heard Prager on a radio station last night, so I don’t have a link for an article.

  • Jim Lockhart

    Even though the “penalty” was never called a tax, Chief Justice Roberts had to be deferential and view it in its best light so he determined it was a “tax”. I will give him that. However, lost in the discussion that the “penalty” on failing to buy health insurance is a “tax” is the distinction Roberts made that: “(t)he payment is not so high that there is really no choice but to buy health insurance.” [Syllabus 4(b)] That leaves open the question of whether the “tax” would/will be struck down in the event that the power to tax were to be used to actually force/compel purchase. The point: because of this distinguishing language (a caveat, if you will) the proponents of the act are left with no clear constitutionally permissable basis to compel purchase of insurance. Without some way to compel purchase of insurance, the government is left with coming up with the money to pay for health insurance for those who will not be able to afford it now that people with serious illnesses, pre-existing conditions, eligible for free benefits (contraceptives, abortaficients, etc.), etc. are included. Nothing wrong with including additional people with serious illnesses and all, however, their care will have to be paid for and the money has to come from premiums. Thus, in every respect the Chief Justice put the issue back in the political sphere where it should be. Ultimately, health care is a revenue issue and is clearly political: who gets treated; what treatments are covered; and who pays the cost. Chief Justice Roberts did well by the Court and the American people.

    • Aaron O'Kelley

      Why did Roberts have to consider it a tax when it was explicitly argued by the government that it was not a tax? It looks like he found the law, as it was, unconstitutional, and then he rewrote it to make it fit his understanding of the Constitution. This is the worst form of judicial activism. Judges should not be writing tax policy.

  • James Haga

    What abiut the idea that a wise man just handed the republicans a loaded gun on purose, now it ony walte to be seen if the are smart enough to use it. He made Obama a down right lier, about not raising taxes.
    and that is my take on the subject
    Jim Haga

  • Don Johnson

    Another strange thing I have read is that if it IS a tax, then the anti-injunction precedent applies, which means SCOTUS had no authority to rule on the law until it was implemented, but they did rule on it anyway. Sounds like a Catch 22 ruling.

  • Matt

    Daniel Epps had an interesting take over at The Atlantic (http://www.theatlantic.com/national/archive/2012/06/in-health-care-ruling-roberts-steals-a-move-from-john-marshalls-playbook/259121/)

    I spent time with Paul Clement this week (he was the attorney chosen by the states to argue against Obamacare before SCOTUS) and he was shocked at first but seemed to be reconsidering Roberts position by Friday. He still would have preferred to win outright but, if you read the decision, the mandate was in fact held unconstitutional. It only survives as a tax. Very interesting times.

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