John Roberts Makes His Career Move

For John Roberts, it is Palm Sunday.

Out of relief and gratitude for his having saved Obamacare, he is being compared to John Marshall and Oliver Wendell Holmes.

Liberal commentators are burbling that his act of statesmanship has shown us the way to the sunny uplands of a new consensus.

If only Republicans will follow Roberts’ bold and brave example, and agree to new revenues, the dark days of partisan acrimony and tea party intransigence could be behind us.

Yet imagine if Justice Stephen Breyer had crossed over from the liberal bench to join Antonin Scalia, Sam Alito, Clarence Thomas and Anthony Kennedy in striking down Obamacare. Those hailing John Roberts for his independence would be giving Breyer a public caning for desertion of principle.

Why did Roberts do it? Why did this respected conservative uphold what still seems to be a dictatorial seizure of power — to order every citizen to buy health insurance or be punished and fined?

Congress can do this, wrote Roberts, because even if President Obama and his solicitor general insist the fine is not a tax, we can call it a tax:

“If a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. … If the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”

Roberts is saying that if Congress, to stimulate the economy, orders every middle-class American to buy a new car or face a $5,000 fine, such a mandate is within its power.

Now, Congress can indeed offer tax credits for buying a new car. But if a man would prefer to bank his money and not buy a new car, can Congress order him to buy one — and fine him if he refuses?

Roberts has just said that Congress has that power.

Clearly, the chief justice was searching for a way not to declare the individual mandate unconstitutional. But to do so, he had to go through the tortured reasoning of redefining as a tax what its author and its chief advocates have repeatedly insisted is not a tax.

Why did he do it? One reason Roberts gives is his innate conservatism.

As he wrote in his opinion: “We (the Court) possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected 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.”

This is a sentiment many of us seek in a jurist in a republic: a disposition to defer to the elected branches to set policy and make law. But Roberts here raises a grave question — about himself.

While it is not the job of the Supreme Court “to protect the people from the consequences of their political choices,” it is the job of the Supreme Court to pass on the constitutionality of laws.

Did Roberts look at that individual mandate and conclude that it passed the constitutionality test? Or did he first decide that he did not want to be the chief justice responsible for destroying the altarpiece of the Obama presidency and sinking that presidency — and then go searching for a rationale to do what he had already decided to do?

Here we enter the area of surmise.

In the view of this writer, Roberts desperately does not want to seen by history as merely a competent but colorless member of the conservative bloc on the Supreme Court, another reliable vote in the Scalia camp. He does not want Anthony Kennedy, the swing justice, to be making history, while he is seen as a predictable conservative vote.

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Pat Buchanan


Patrick Buchanan is a conservative political commentator and syndicated columnist and author of several books, including Suicide of a Superpower: Will America Survive to 2025?.

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  • Diana

    In my opinion, Justice Roberts is a traitor to the Constitution.  He has enabled Obama’s endless power grab and brought socialized health care to America. 

  • QuoVadisAnima

    Enabled, perhaps, but no, it was a majority of Americans that brought socialized healthcare to America by voting Obama into office based on little more than his not being Bush instead of looking at his resume & record… and then failing to knock the Democrats out of their Senate majority based on the GOP’s political impurities… now we reap what was sown…

  • QuoVadisAnima

    I am more inclined to agree with Ken Connor ( than Buchanan’s bitterly  uncharitable cynicism.  I wish Roberts had thrown it out, too, but he WAS actually following an established SCOTUS precedent. 

    And on the bright side, has actually succeeded in limiting Congress’ growing usurpation of power under the Commerce Clause which would have generated a LOT more fuss if it hadn’t happened in the background of the healthcare furor. 

    Notice that Obama’s crew has been desperately trying to argue against Roberts’ opinion even as he had ruled in their favor?  Can’t be done in the 30 second sound bites that our short attention span society favors and he’s making no headway so instead it comes out looking bizarre – ‘Obama disagrees with Roberts on healthcare after Roberts agrees with him’. 

    And now the GOP is having a field day pointing out that Obama has given us the largest tax increase in American history at a time when the economy is tanking and people are clamoring for tax relief – and jobs.

    It is very possible that Roberts is playing chess while everyone else is playing checkers.

  • Rakeys

    Justice Roberts could easily have “succeeded in limiting Congress’ growing usurpation of power under the Commerce Clause” by declaring the health bill unconstitutional. He could have said since it is not a tax, but a fine, the Presidnet and congress have no authority to force people to buy health care under the commerce clause.
    . Our taxes are for something we do. A tax on things we purchase, or a general income tax to pay for the services we receive. There is no other tax for things we do not buy.
      Are we going to be taxed for not owning a gun, or not owing a house, or a car. Are we going to be taxed because we do not use birth control pills? We are being taxed so that others may use birth control pills for free, even if it goes against our conscience. Under the HHS mandate their is a huge penalty (tax ?) for not providing health care which pays for contraception, sterilization, and abortion producing drugs.

  • Ziema26

    Indeed, people get the government they deserve.

  • Peter Nyikos

     QVA, is there anything Congress would like to do under the Commerce Clause that it cannot do on the grounds that it is a “tax”?

    I still haven’t seen how Roberts worded his explanation, but as I said in reply to Ken Connor’s piece, I do not see how he could have done it without radically redefining the concept of a “tax”.

    I do tend to agree with you on one thing: Roberts was actually following an established SCOTUS precedent.  Only,  seems to me  that the precedent it was following was legislating from the
    bench–just as 7 justices did in Roe v. Wade. 

  • Patrick Williams

    What is the job of the Supreme Court if it is not to protects us from bad law?  And, if the court one day should decide that the Earth is flat, will that flatten it?

  • QuoVadisAnima

    Don’t misunderstand me – I am not high fiving Roberts’ decision.  I’m just not yet convinced that Roberts has betrayed the people by ‘legislating from the bench’.

    The Dems passed Obamacare with the fabrication that it would all be paid for and there would be no new taxes.  Now the curtain has been pulled away & those who actually believed such a thing was possible, are left with the reality that Obama is hitting us with a record-setting monumental tax increase.

    My point is merely that Buchanan’s opinion does not fit well with the facts.