John Roberts v. ObamaCare: An Apologia

Conservatives complain, often justifiably, that stupid Republicans are all too quick to throw their own under the bus when turmoil arises, while leftist Democrats stick up for their henchmen through any and all fraud and deceit.  But look how many conservatives have been eager to give Chief Justice John Roberts a poke in the eye with a sharp stick following the ObamaCare decision -- not just criticisms, but outright ad hominem attacks, even hinting that Roberts has been a closet leftist all along.

By noon Thursday, literally minutes after the decision was announced, Rush Limbaugh was in full fulmination mode: "[W]e, the American people, have just been deceived in ways that nobody contemplated.  And what we now have is the biggest tax increase in the history of the world[.] ... The chief justice was hell-bent to find a way to make this law applicable, so he just decided, you know what, as a tax increase, it [the mandate] works, because there's no limit on the federal government's ability to tax."

Later that day, Mark Levin, dependably passionate and outspoken, proceeded to deconstruct Roberts as he "explains the Justice's opinions and how Roberts was illogical and incoherent. This was no win whatsoever for conservatives or for the American people; this shouldn't have been upheld under any clauses and yet we had 1 Justice that changed everything and allowed the federal government to have more power over the individual."

By Friday, the normally cheerful and ebullient Rush had descended to maudlin depths: "I can't tell you how sick I am. I am literally sick over what happened yesterday. I don't know how else to describe it[.] ... A giant total fraud was perpetrated on this country yesterday. The Supreme Court as an institution is forever tarnished."

With all due respect -- and my respect for these two and many other public conservatives is immense -- I contend that such judgments on the ObamaCare ruling, and in particular on the role of Chief Justice Roberts, are profoundly, abysmally wrong.  The fervid shock and horror of many of our people over the ruling appear to have morphed, sadly, into the very outcomes-based judicial-activist mentality we so decry among leftists.

First, let's get straight just what the ruling did -- and did not -- bring about.  The Court treats as a tax "for constitutional purposes" the so-called "shared responsibility payment" that ObamaCare proponents have insisted on labeling a "penalty" (Court, p. 33); the Court does not treat the legislation's insurance mandate per se as a tax, although Justice Ginsburg's concurrence wording on this matter seems somewhat ambiguous (Ginsburg, p. 37).  The Court does not treat the "shared responsibility payment" as a tax with reference to the Anti-Injunction Act, which would require that it be adjudicated only after a tax had been paid and a plaintiff with such standing has contested the payment (Court, p. 33).  Roberts' reasoning leading to this conclusion is intellectually demanding and needs to be read in its entirety to get one's hands fully around it; however, it is altogether sound, perspicuous, and certainly not, contra Levin, incoherent.  But this still leaves open whether the Court's ObamaCare ruling is constitutionally correct.

What seems to be rankling conservatives more than anything is the way Roberts steers past the government's frontline argument -- that the insurance mandate is constitutional as an exercise of power granted by the Constitution's Commerce Clause (Article I, Section 8) -- and pulls to a stop at the government's fallback argument -- that the "penalty" for foregoing the purchase of insurance be treated as a tax inasmuch as the "Court follows a functional approach, '[d]isregarding the designation of the exaction, and viewing its sub­stance and application'" (Syllabus, p. 4).  In other words, if it walks like a tax and quacks like a tax, it is a tax for constitutional purposes.  The "penalty," so treated, thereby nullifies the command power that would be imputed to the mandate under the Commerce Clause, a power that the ruling deems unconstitutional.  Roberts himself summarizes this position best (Roberts, p. 44):

The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.

But Jacobson, you say, this makes it look like Roberts wants, really wants to find ObamaCare constitutional.  Well, yes, he does.  And furthermore, he openly acknowledges this, along with precedent cited: "'every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,' Hooper v. California, 155 U. S. 648, 657" (Roberts, p. 32).  It is noteworthy that Roberts' citation refers to five additional precedents.  The point is that Roberts' contention is not just a silly figment of an addled imagination, as with "penumbras, formed by emanations"; it is a serious proposition with a respectable jurisprudential history.

But now the smoke is really pouring out of your nostrils: "I thought when this Roberts was nominated he was supposed to be a conservative.  He's been hanging around Washington too long.  He's just another Earl Warren.  He cares more about his legacy and being invited to the Georgetown cocktail parties than he does about the American people.  What kind of a conservative justice is this?"  Answer: he is not a conservative justice; he is a justice, and he has just demonstrated what that should mean.  Roberts actually has shown himself in this crucial ruling to be the ultimate advocate for authentic judicial anti-activism (Roberts, p. 6):

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 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.

Yes, we have been deceived with regard to ObamaCare, but the Great Deceit happened in 2008, when many Americans let themselves be duped by the "hope and change" lies and propaganda shoveled out by Obama and his Democrat henchmen.  We the people have only ourselves to blame.  There has been no deception by Roberts or anyone else on the Supreme Court.

Justices like John Roberts epitomize the vast difference between judicial review and judicial supremacy/tyranny.  In the ObamaCare ruling, he has dumped the health care issue right back into the laps of the American people and their elected representatives.  That is exactly where it belongs.

And it just so happens that the gift comes in a sweet package (on purpose, heh, Chief Justice Roberts?): now that the "penalty" has been relabeled a tax, it can ultimately be brought under Senate reconciliation procedures and voted out with 51 votes.  This will neuter ObamaCare forever, even if Republicans never gain the filibuster-proof majority needed to repeal the entire bill.  Ex post the SCOTUS ruling, leftists are spiking with great abandon, but before long it will dawn on them that they have been "hoist by [their] own petard."  Then there will be wailing and gnashing of teeth.  We conservatives need to be girding our loins for the November election battle and the fusillade of unconscionable leftist abuse and contumely certain to ensue thereafter.

This ruling should not be seen as a defeat for the American people or as an imposition of tyranny, as some are shouting.  It should be regarded as, hopefully, the beginning of a new era in American jurisprudence, a time when judicial review comes to be applied prudently, sparingly -- and rarely. 

Paul Jacobson is a freelance writer on political/cultural topics.  He blogs at

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