Tuesday, July 03, 2012



What hath John Roberts wrought? On the lighter side, he now has both the purveyors of Obamacare and Romney’s staff saying the mandate is not a tax, while Roberts himself says it is and uses it to rescue this horrible bill. In the meantime, Roberts wisecracks about what he has handed to the American people. And what exactly is that?

First, though, who exactly is he? He is a résumé reader’s dream: growing up well-to-do, attending fine prep schools, handsome and athletic; then the piece de resistance: both Harvard College and Harvard Law [managing editor, Harvard Law Review]! Both with honors!! He left Harvard Yard and, traveling to D.C., stopped for one year to clerk for a federal judge in Manhattan. After that he completed his journey.

In other words, having grown up in Indiana, he left flyover country at age 18, passed through places that have given us some truly awful people, and soon landed permanently in the Mammon that we call D.C.

Roberts worked in the Reagan administration. Is he a Ronald Reagan? Apparently not. He was nominated by George W. Bush. Is he a W ? Perhaps in the “compassionate conservative” sense. Does he have actual constitutional credentials? He seems to: he has written some good opinions in the past, and he served in a significant position in the D.C. chapter of the Federalist Society. So what happened?

Reading his Opinion is somewhat helpful. The entire Opinion runs a svelte 193 pages. Roberts’ contribution starts at the bottom of 7 pages of Syllabus, and runs 59 pages. The Honorable Ginsburg’s concurrence/dissent runs on for 61 pages. The four dissenters jointly wrote 65 pages, and Justice Thomas also wrote a separate 2-page concurrence with the dissenters.

Roberts starts out as though he is back at the Federalist Society. Early and often his opinion runneth over with acknowledgements of the federal government’s “limited” power, that its powers are only those “enumerated,” the importance and clarity of the Tenth Amendment, and the wisdom and virtue of the “framers of the Constitution.” Well into the opinion one can be excused for thinking that he is on the right track.

Dismissing the argument that the individual mandate creates a “tax” (clearly it creates a “penalty”), he sneers at the suggestion that Congress can use its commerce power “to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned,” he explains. Hearts are thumping at this point.

Then he begins to turn the Titanic toward the iceberg. He finds it “necessary” to revisit the tax or penalty question. If he can figure out how the “penalty” can be just enough of a “tax” to rescue Obamacare, we can all take comfort that we will still be “the country the Framers of our Constitution envisioned.” He begins speaking patronizingly of the “joint dissenters.” They just don’t understand.

So what did happen? Charles Krauthammer thinks Roberts may have become more concerned about the Supreme Court’s institutional legitimacy than about upholding the Constitution. Perhaps. Michael Savage thinks it might be his medication. Perhaps. Knowledgeable D.C. insiders talk of Roberts being way too concerned about what the Washington Post and the New York Times write about him: the seemingly inescapable D.C. disease known as “what will my legacy be?”

Some suggest that Roberts deserves kudos for putting a serious limit on the endless stretching of  commerce clause power. He was trying to help the Constitutionalists among us. If so, thanks for nothing. Even if that was his thought, he has actually handed a power-grabbing, overreaching,  “progressive” Pelosi-Reid-RINO Congress a Users’ Manual for limitless power-grabbing: simply add a tax, or just a penalty, to every future power grab. No need to even fool around with the commerce clause anymore.

For all the awfulness Roberts’ opinion has just given us, he has given us one sentence that must ring in our ears forevermore: “It is not our [the Court’s] job to protect the people from the consequences of their political choices.” Think about that. Especially on the Fourth of July.

We may all have to turn off our TVs and start paying attention, start taking a more direct role in elective politics, and start earlier in the game. We can not continue ignoring primaries and waiting for the establishment parties to hand us two bad choices. We can not keep electing reach-across-the-aisle Senators who will vote to confirm Elena Kagan because she has a great sense of humor. And we can not count on even the most conservatively credentialed Supreme Court Justice to save us if we have not been doing our job.

MO Atty

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