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Chief Justice John Roberts’ incredible and pusillanimous decision to rule Obamacare constitutional last week prompted many responses. There were those conservatives, like me, who saw this as the final blow to the notion that the Constitution matters to lawmakers and the Court – a capper to the Era of Big Government run amok. To us, the decision was nakedly political; there was no possible way to read Obamacare as anything other than an individual mandate; after all, President Obama himself had denied that it was a tax.
There were those conservatives who suggested that the Roberts decision was some sort of brilliant gimmick designed to avoid handing Barack Obama an election issue, and circumscribe expansion of the Commerce Clause. These commentators, too, thought the decision was political – just from another angle.
And then there was the left.
The left hated Chief Justice John Roberts. Because he was a political conservative – and because political conservatives are typically originalists who don’t believe in random expansion of government powers under the Constitution – the left saw him as a political actor. They decried his nomination. They said his Court was partisan, hell-bent on instituting conservatism by non-democratic means.
Until he ruled.
Then, all of a sudden, he was sweetness and light. The day of the ruling, the New York Times ran an editorial stating, “[Roberts] has said that he has wanted to restore the court’s reputation and reduce partisan language. But he was seen by many, at least on the left, as more devoted to conservative politics than to the purity of the law. That could change.”
Bloomberg News crowed, “With a single vote supporting President Barack Obama’s health-care law, Republican-appointed Chief Justice John Roberts asserted his independence and defused claims that partisanship rules the Supreme Court.”
Wild leftist Bob Shrum wrote in the Daily Beast, “John Roberts may have forgotten the oath of office when he administered it to Barack Obama; he remembered his oath when he decided this case. Indeed maybe it is possible that Al Gore would have been president if Roberts had been chief justice in 2000. Yes, I know that he was part of the Bush legal team in Florida, but that is not the point. Given his politics, I am certain that Roberts would not have voted to pass health reform. But he did vote to uphold it; he did what a judge is supposed to do—follow the law, not his own politics.”
Forgive me if I do not trust such liberals’ crocodile smiles. While Lawrence Tribe of Harvard Law School may tout that Roberts ruled apolitically in this case, the evidence is that he did anything but – and Tribe knows it. Actually, rumors abound that Roberts switched his vote shortly before the ruling in order to appease certain political forces. But over time, there is no doubt that the Obamacare ruling will come to be seen just as Roe v. Wade is: as a political ruling that, even for the left, is embarrassing on a legal basis.
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