It's Slipping Away
Anyone paying attention has read or least has heard about the plausible investigative story from CBS reporter Jan Crawford suggesting that Chief Justice Roberts chickened out on striking down ObamaCare. He's got some 'splainin' to do. Except apparently he devoted a month 'splainin' his flip-flop to Associate Justice Anthony Kennedy, who wasn't buying any of it. Neither should we.
Conservative stalwarts Charles Krauthammer and George Will have luxuriated under the same fountain frequented by Roberts, judging by their plaintive pleadings and contorted apologetics on behalf of Robert's capitulation.
Hyperbolic rapture has been customary from the usual gang of lefty historians about Obama the constitutional law scholar, etiam voracious reader, etiam brilliant legislative cobbler, etiam world peace guru, and, this past week, "historian-in-chief" (from Politico here).
Who would have predicted that Krauthammer and Will on the right would imitate Obama's massage parlor pals from the left, as they elevated Roberts to the clever jurist circle joining John Marshall and Oliver Wendell Holmes? Not to be outdone, suspected lefty but usually objective WaPo columnist Charles Lane declared that Roberts "is playing chess while everyone else is playing checkers."
There is enough circumstantial evidence that Roberts lost his nerve under the pressure of the pre-emptive warnings from the president, Democrat pols, and the left-wing media, who threatened to smash Charles Lane's metaphoric checkers board over Roberts' head if his Court erased ObamaCare. Roberts' game of chess arrived only after he forfeited the checkers match, in a furtive attempt at salvaging some intellectual self-esteem. Playing to a mirror, Roberts instead checkmated himself (see here where it is inferred that Roberts also wrote the dissent).
How will Roberts recover? Far from wielding a formidable intellectual phalanx commanding a broad spectrum conservative following, his integrity is now suspect. Will this Court overcome the apparent schism and isolation where the chief justice shares few philosophical affinities amongst the four liberals on the Court, but whose analytical reasoning now may be dismissed by the four conservatives as defective and whose temperament and steadiness are not to be trusted?
More importantly, how will we recover? Despite Roberts' soggy cardboard caricature that emerged so alien to his prior crisp mahogany conservative Federalist Society reputation, perhaps we were misguided to expect heroics in our favor on such an ideologically split Court in a nation where the left dominates the Washington, D.C. office suites, salons, and cocktail circuit. Columnist David Brooks, whose erstwhile slobbering over Obama soiled his conservative credentials, got it right this time with his observation that the people themselves need to rein in and defeat ObamaCare at the ballot box, not rely on a "deus ex machina stroke from the lords in black robes."
For what little due is due, Roberts preceded Brooks with the same line of reasoning:
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"... "it is not our role to forbid it, or to pass upon its wisdom or fairness" [re ACA]..." the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people. (Opinion of Roberts, CJ pages 6, 44, and 59.)
Good luck with that.
Well, fair enough, as the Irish are wont to say on a disagreeable topic past the point of arguing any longer. Yet we've just endured a string of nasty defeats -- the EPA's authority for regulating so-called greenhouse gases upheld, the Arizona case to enforce the enumerated federal power to protect our borders denied, and now the survival of ObamaCare on the most dubious grounds.
It surely seems like reliance on the High Court to affirm the Constitution's framework for divided power -- limited enumerated authority conferred to the central government with most rights reserved for the States and the people -- is slipping away.
Nullification of the 10th Amendment -- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people" -- has been creeping up since Woodrow Wilson and the first wave of Progressives commenced their assault on the Constitution. Progressives using fairness and equality as more noble ambitions for this nation in place of liberty and opportunity have gradually won over the court of public opinion and affection. The 10th Amendment is now as diminished and irrelevant as the 3rd Amendment, prohibiting the quartering of troops in private homes.
Conservatives have been on the losing end of legislation and Supreme Court judgments because their message about limited government and local control -- essentially "leave me undisturbed in my person and my possessions" -- intrinsically suppresses their temptation to impose their will on others, respecting the dictum, "let us leave each other to his own devices." The liberals, whose unabashed agenda is centralized control by the all-knowing elite meritocracy, have no restraints against spreading their propaganda by using all media in all manners, methods, and style, whether honest or dishonest, directly or through surrogates.
Simply put, the conservatives' message inhibits their messaging. Liberals love to preach because preaching is all about control. And like munching on comfort food rather than nutritious high fiber, it is so much easier to listen to sweet nothings about fairness and equality from the left than to swallow the hard-edged but apologetic admonitions about individual responsibility from the right.
Yes, it is slipping away. The final resting place for this most disagreeable journey will be the fate of all collectivist societies -- poverty and squalor. Friederick Hayek best expressed these futures in "The Road to Serfdom." But why study and work hard to avoid Hayek's bleak vision when it's easier to be dependent on the welfare state, all financed by someone else's largesse? Until the money runs out, of course, which it always does.
The fate of our Republic is in the hands of either our current crop of feckless legislators -- the likes of John Boehner and Mitch McConnell -- or those voters, beleaguered taxpayers, slowly being crushed by the burdens of a collectivist state, sensing that this may the last stand for limited government but who are now outnumbered by the Democrats' dependent class.
Still, Roberts has one more chance at redemption. The religious liberty litigation brought by 43 Roman Catholic institutions seeking redress over the HHS contraceptives and abortifacients mandates under ObamaCare will likely reach the Supreme Court in its forthcoming term. Roberts watchers suggest that he is far more conservatively doctrinaire on social issues versus economic issues. But if he forms the majority with the liberals in denying the most sacred foundation for the First Amendment, then the central government will be victorious on all counts but one.
Those who revere individual liberty will then be left with nary a thin reed -- at least the right to howl unmolested at the moon or into an empty canyon.