Are We Being Too Hard On John Roberts?

“Members of this court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.  Those decisions are entrusted to our nation’s leaders, who can be thrown out of office if the people disagree with them.  It is not our job to protect the people from the consequences of their political choices.”
-Chief Justice John Roberts in NFIB vs. Sebelius


Conservatives are apoplectic that John Roberts, Chief Justice of the Supreme Court, sided with the liberal wing of the court in largely upholding the constitutionality of The Affordable Care Act (ACA).  Their rhetoric has been filled with invective and they have described Roberts as “a traitor to his philosophy” who is “forever stained in the eyes of Conservatives.” His opinion has been called “the worst kind of judicial activism” and characterized as “a 21st century Dred Scott decision.”

You get the picture.  In joining the majority in upholding Obamacare, Roberts has become the Benedict Arnold of the Bench.

To my friends on the right, I say, “Enough with the hyperbole.  Take a breath.  Chill out!  Roberts is not guilty of the perfidy of which you accuse him and he has given us a great gift for the coming election.”

And before we go further, let’s make one thing clear.  In ascending to the Supreme Court, John Roberts did not take an oath to advance the cause of conservatism or the agenda of the Republican Party.  He did not agree to become a judicial activist for the Right. He took an oath to uphold the Constitution.  The role of the Court is to interpret the Constitution, and in the Obamacare decision, he has made a good faith, well-reasoned, carefully considered attempt to do just that.  The fact that we may not agree with the outcome he reached does not make him a traitor or some kind of a two-horned, one-eyed judicial activist.  Surely there is room for honest disagreement within conservative ranks.  And is charity not one of the virtues we extol?

Conservatives should take heart from Justice Roberts’ explication of Congress’ power under the Commerce Clause of the Constitution.  That clause has provided the pretext for an incredible expansion of the federal government into the lives of its citizens.  Roberts, however, dismantled the government’s argument that the ACA represented an appropriate exercise of power under the Commerce Clause and its kissing cousin, the Necessary and Proper Clause, which gives Congress the authority to do those things necessary and proper for carrying out its enumerated powers.

Rejecting the ACA’s individual mandate provision as an appropriate exercise of Congress’ authority to “regulate” commerce, Roberts ruled that a consumer’s “inactivity” in failing to purchase health insurance could not be equated with the “activity” of purchasing it.  In the absence of such commercial activity, Congress had nothing to regulate.  Additionally, Roberts ruled that Congress’ passage of the ACA was not a “proper” exercise of its authority under the Necessary and Proper Clause.  In so ruling, Roberts affirmed the importance of the Tenth Amendment and struck a blow for the rights of the states and their people to be free from unwarranted and unconstitutional intrusion by the federal government.

The real rub for conservatives is that Roberts found that Congress had the power under the Taxing and Spending Clause to enact the individual mandate required by the ACA and to financially penalize those who do not purchase health insurance under the new program.  In doing so, Roberts looked beyond the euphemistic form of the language Congress used to describe the consequences of failing to make such a purchase (“shared responsibility payment” and “penalty”) to the substance of those consequences.  He then called what he perceived to be a spade a “spade,” denominating it a “tax.”  In doing so, Roberts found that portion of the ACA to be a proper exercise of the Congress’ taxing authority, and therefore, constitutional.

In reaching his conclusion, Roberts acted in accordance with historical precedents which provide that when a statute is capable of two interpretations—one of which would result in the statute being unconstitutional and the other of which would result in the statute being constitutional—courts should indulge the interpretation which favors constitutionality.  In other words, courts should show deference to the people’s elected representatives and not be too eager to invalidate laws passed by them by declaring them unconstitutional.

Roberts also pointed out that there is a remedy for those who don’t like Obamacare, namely an election.  If people don’t like Obamacare, if they think it is a socialistic, job-killing, tax-hiking, economy-stifling program that America can’t afford, if they think it will degrade the quality of medical care in this country, they can throw the rascals out who passed it and elect a new set of rascals who will repeal it.  That’s what democracy is all about.

Elections have consequences, and John Roberts is absolutely right that it is not the role of the Court to protect the people from the consequences of their political choices.  That’s what judicial activists do.  They invalidate legislation based on whimsy and substitute their own fanciful ideas about what’s prudent for that of our elected representatives.  Judicial activism short-circuits the democratic process and puts power in the hands of a judicial oligarchy.  Roberts has not engaged in judicial activism.  In this case, he has left the power make change in the hands of the people.  So if you don’t like Obamacare, do something about it.  Stop whining and get off your duff and go to work to elect those who will repeal it.  And for goodness’ sake, get off the back of John Roberts.  He doesn’t deserve our derision.

Ken Connor is an attorney and co-author of “Sinful Silence: When Christians Neglect Their Civic Duty”  He is also Chairman of the Center for a Just Society.  For more articles and resources from Mr. Connor and the Center for a Just Society, go to

Ken Connor


Ken Connor is the Chairman of the Center for a Just Society. An esteemed attorney, Connor is affiliated with the law firm of Marks, Balette, & Giessel, a firm nationally known for its successful representation of victims of nursing home abuse and neglect.

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  • Peter Nyikos

    There is something missing from this otherwise excellent analysis.  And that is the reasoning whereby Roberts arrived at his astounding conclusion that insurance premiums count as tax, and penalties for not being insured count as tax.  I cannot imagine any reasoning that could lead to such a conclusion without undermining the very concept of what constitutes a tax.

    I admit that I have not yet read Roberts’s opinion, but that is precisely why I value Connor’s analysis so much, as far as it goes.  I just wish it would go this one crucial step further.

  • servantofcharity

    Accusing Justice Roberts of illicit motives is unjust, I agree.  I am very upset with him, but will not attack him with emotional accusations.  I wonder, though, speaking of precedent, is there any other example of a fine being imposed on people for not doing what the government says that is characterized as a tax?  I’m honestly not sure if there is, but this seems like an incredible stretch, and for the life of me, I don’t understand why justice Roberts would play semantic gymnastics to save Obamacare.  I’m sure he believes he’s correct, but most people I’ve listened to that respect the Constitution disagree with him.


  • Desertwatch333

    July 5th: this is an excellent article. Charles Lane said that while we are playing checkers, Justice Roberts is playing Chess…and Mr. Weigel wrote an excellent article about Justice Roberts and his decision, well worth reading. But there is another aspect to this situation. Obama made it clear that if the Court ruled against his health care bill, he would take on the court and there would be a war. And I believe Obama would have called out his union thugs – remember the President of the Union screaming out at a huge rally: “We are your army, Obama.  Let’s bring the #%$#@ down!” and there would have been violence, rioting in the street, looting and destruction of property – and Obama would have declared Marshall Law and could have remained in office as a result…although Obama is putting on a great show, I don’t believe he is at all happy about the decision…now the people know that what Obama declared over and over and over again not to be a tax is indeed a tax and a massive tax increase on middle class Americans. When this is brought up for repeal, the Dems. in the Senate will be forced to vote for this massive tax increase and their names will be made public and they will lose the next election…Justice Roberts made the right decision, a wise decision and all those who are excoriating him should be ashamed of themselves.

  • Hatchmark

    Sorry to disagree and run the risk being called “uncharitable” but Roberts DOES deserve our indignation!  He rewrote the law plain and simple.  Honestly, there were NOT two reasonable ways of interpreting this “statute” – the legislative branch deliberately did not intend it to be construed as a tax but a penalty for not doing what they tell us to.  I believe it IS the job of the supreme court to protect the citizenry from an overreaching Federal Government; instead Roberts went out of his way to make up a reason to be able to “indulge” the underhanded dishonesty of a radically liberal liar.  Shame on him and shame on all of us for not standing up and calling a spade a spade!  Yes, elections do have consequences but our Founders meant for the separate branches of our government to provide checks and balances to each other not a rubber stamp!

  • Desertwatch333

    Obama’s lawyer argued that it IS a tax…Justice Roberts did the wise thing…and now Obama and his comrades will have to answer for imposing the most massive tax increase in history…

  • Hatchmark

     There is nothing WISE about allowing the administration’s lawyers to lie and rewrite the intent of the Congress that voted for this monstrosity!

  • dadfly

    the fact that he is a lawyer makes his opinion unsurprising. however:

    1. this ruling does nothing to restore or protect the commerce clause. wickard v. filburn still rules the day and *none* of the leftist political justices signed on to robert’s opinon. the vote not withstanding, he was writing entirely for himself against the other 8.

    2. this ruling lets stand the principle that the federal government can force any living individual citizen to buy a private sector product it deems necessary for the “general welfare” (a phrase in an introductory clause with no limiting function that leftists commonly use to justify their false belief in a “living, breathing” constitution. in fact i believe that roberts actually cited that introductory phrase in his opinion. stunning). show me the enumerated power in the constitution that allows this. show me the founder or framer expressing this federal interpretation of power in the constitution (which express purpose was to limit federal power to the absolute minimum to protect the lives, and private property of states and individual citizens from external threats, other states and criminal individuals). this ruling *creates* a whole new federal power out of whole cloth. how does that square with the fact that the constitution was to hold federal power constant at the level established in 1789 with the only additions being further amendments?

    3. finally, the sheer lawlessness of a judge rewriting a statute (substituting an new and itself unconstitutional catagory of tax for a penalty) is something that should demand immediate impeachment. no definition of justice under the constitution allows a judge to make up law on the spot in a constitutional republic. that act is logically excluded from a constitution that holds federal power constant. also, to continue with my refutation of the article above. rewriting a law is not taking the difference between constitutional or unconstitutional interpretation. that implies that an existing law is ambiguous. no, this is tyranny. and roberts is unmasked as a leftist. pure and simple.

  • Clement_W

    From the very first day the ObamaCare was passed in Dec. 2010, I have had the insistent feeling that the entire country had come to cross-roads and that we, as individual volters, had to make a drastic choice as to what kind of a country we want. The same applies to our Catholic Church and as whether we want a truly Catholic/Universal Church or a schismatic ‘American’ Catholic Church at the left end of the SSPX.

    I applaud Chief Justice Roberts for pointing out that if we, the people, want a Government of our choice, we cannot duck our responsibility by expecting either the Legislative or the Judicial branches to do what ONLY, WE THE PEOPLE, can constitutionally do. By blaming the Congress and the Supreme Court for what we have failed to do, that is, exercise the constitutionally guaranteed ultimate power, we are individually and collectively responsible for the success or failure of our country.

  • hatchmark

     Thank you dadfly!

  • Cthemfly25

    Mr. Connor
    This is a very troubling analysis and at the risk of being disrespectful does not indicate a deliberative reading of this outrageous decision. Roberts has decoupled the power to tax from any enumerated power. This is a small step from taxation for the exercise of a right. The power to call something a tax is a far more serious concern for our liberties for that now newly discovered power will avoid enumerated limitations

    Putting aside the silliness of Roberts’ legal “construct” which is devoid of any serious constitutional fealty, the legacy of this decision will remain with us far beyond the the hoped for repeal of obamacare. Roberts also decoupled the “tax” mandate from the very specific taxing authority expressed in the constitution’s article I section 8 and 9 taxing powers, or the income tax. This is not an excise or income tax but a “tax” on behavior. Thus, we can expect an unquenchable power grabbing future Obama or Reid or Pelosi to, for example, tax homeschooling parents who refuse to teach a homosexual curriculum. And despite Ginsberg’s gratuitous footnote you cannot distinguish taxation of individual behavior from the power to “tax” the behavior of religious institutions.

    This article fails to educate and inform your readers of the very real and serious consequences of the Roberts’ decision.

  • James Stagg

    Thank you.  An excellent reading and reasoning of his ruling.  
    Besides the part of the ruling which prevents (potential future cases) federal blackmail of states, this is my take on that sly, young rooster (Roberts), who has prevented the fox (BOZO) from raiding the hen-house:

    Democrats and other socialists may celebrate this SCOTUS decision; but, it’s too bad that most people in the U.S. disagree with their view.  I look forward to a new Congress, after the coming election, with Republican majorities in both the Senate and House, with a Republican president, who will completely overturn this monstrosity which has been fraudulently imposed on the American public.  How’s that for a contrarian view of this ruling.  This decision will galvanize the Tea Party, of which I am a proud member.

    To be positive about this decision (there are potential conflicting layers) of the Supreme Court, I think Justice Roberts pulled off a magnificent coup on this (un)Democratic administration.  As thinkers absorb this decision, I believe they will reason accordingly, and refute the socialist knee-jerk reaction.  I’m afraid Obama’s past incautious remarks have come back to haunt him, although he may not realize this until he is decisively defeated in November.

    For those who are celebrating, consider three things that Justice Roberts has engineered:

    1.  He has isolated the Supreme Court from any Democratic Party criticism for the remainder of this presidential campaign.

    2.  He has removed the ONE potentially major claim that Obama could campaign on…..that he tried to pass healthcare “reform”, but that darned old Republican-dominated Supreme Court negated his massive (and fraudulent) efforts.  Please note that NOW, Obama must run on a healthcare “reform” platform which most voters detest, something he has avoided thus far.

    3.  Roberts has punted the “reform” law back into Congress, where it will be dealt with, quickly, by the Republicans after the election.

    This should be a lesson to the Democrats (eventually, when their brains catch up with their emotions), and their (socialist) supporters.  There is a specific reason why I use “socialist”; the only countries where “universal” healthcare has been implemented, and has subsequently failed miserably (hint: outrageous waste and cost) have been ruled by either overt socialist parties or socialist-oriented, like in Britain and Canada.

  • Drinkthekoolaid

    Yes ….   then Obama’s lawyer argued that it IS a penalty!