Still Struggling with the Roberts-as-Hero Theory

I've tried -- I really have tried -- to accept the kindest reading of Chief Justice Roberts' decision and opinion on ObamaCare.  But, so far at least, I just can't bring myself to see the positive here, let alone evidence that Roberts has outsmarted anyone, except perhaps himself.

I am speaking, of course, of the general opinion, gaining a lot of traction in conservative circles, that by rejecting the case for ObamaCare's unconstitutionality as such, and wresting the majority opinion from the hands of the leftist justices he joined, Roberts was able to score a subtle victory for conservative principles.  If this interpretation, in its various forms, were being pitched only by the usual Beltway pundit suspects (Will, Krauthammer, et al), I wouldn't be making the effort to understand and accept it.  

However, the theory is being espoused -- and has been consistently espoused from the outset -- by some non-establishment Republicans as well, including a few whose minds and motives I respect.

I therefore feel obliged to address their case directly, rather than ignore them, as I would if they were merely the usual suspects I mentioned above.

First, as for the idea that Roberts has made a brilliant strategic calculation, throwing the individual mandate back in Congress' lap as a tax, rather than a penalty, I have to join those who have asked whether it falls within the constitutional authority of a Supreme Court justice to engage in political gamesmanship of this sort, however cleverly conceived or well-intentioned. 

Some argue that Roberts was making a conservative case for delimiting the scope of judicial powers, by saying, "It is not our job to protect the people from the consequences of their political choices."  But in order to uphold the law, Roberts had to reframe it in a way that directly contradicted specific claims made by the law-makers and the President. 

He was not merely "exposing them."  He was giving them a different -- and in his view more acceptable -- version of their law than they had actually offered and defended.  In other words, Roberts is implying that the law itself, as written, was unconstitutional -- a judgment that is not only within the legitimate scope of a justice, but is precisely a prime function of SCOTUS -- and so he has rewritten it for them in order to make it constitutional.  It needs to be explained how this action -- literally legislating from the bench -- falls under the rubric of "conservative judging." 

Then there is the question of how calling the erstwhile penalty a "tax" -- a tax on inaction -- does not open the judicial precedent floodgates to the imposition of taxes on anything, or any non-thing, that any Congress might wish to concoct.

I do not pretend to be sufficiently expert on Supreme Court matters to be able to answer the above questions definitively.  For now, I will leave the task of providing knock-down arguments on those matters to those more expert than I -- which, were it not for Mark Levin, I would be tempted to say means every thinking American except those with law degrees.

But I wish to conclude with a practical political consideration that, assuming Roberts really was as clever as his defenders say, suggests why such a "throw it back on Congress" gambit is bound to fail.

The optimists' best case for the practical value of Roberts' move -- again, assuming for the sake of argument that he was not just abandoning principle -- is that by reframing ObamaCare as, in effect, a huge new tax, he has indirectly handed a winning campaign issue to the Republicans.  After all, so the argument goes, Americans hate new taxes, especially big ones aimed at the middle class.

But what if this case proves an exception to that general distaste for new taxes?  A law that was unpopular to begin with, and had the added disgrace of having been ruled unconstitutional, would be a strong election issue, would it not?  By rendering the law officially constitutional, Roberts has given it new legitimacy. 

And remember that this is not newly proposed legislation.  It is a law that has been on the books for two years, and is already well along the way to being embedded in the practical lives of Americans.  The SCOTUS judgment that it is constitutional, while stoking the passions of the Tea Party minority, will likely have the opposite effect on those middle of the road voters who are less politically engaged.

So what of this huge new tax?  If this were 1776, it is clear what people would think, and how they would react.  Today, however, when American taxes are already high, and when the Democrats will just continue to hammer away at the class envy/class guilt theme on this issue, might not a whole lot of "middle class Americans" simply swallow a tax increase defended in the name of "providing care for those who can't afford coverage," and "refusing to allow 'free-riders' to use 'the system' without contributing to it"?

The ultimate political effect of Roberts' decision, I fear, will be to provide superfluous new "motivation" to those who were already loaded for bear, while providing the embalming muddle of politics-as-usual to those whose votes are most desperately needed, and whose pilot lights might have been ignited by the specter of an unconstitutional assault on their liberty.

Roberts -- whose job it was to pass this very judgment -- has said in no uncertain terms that ObamaCare is neither unconstitutional nor an assault on individual liberty.  It is just another piece of legislation which voters may choose to support or not.

Time will tell how this judgment will affect voters who are not already committed to voting against Obama and the Democrats.  I suspect that anyone who was not already engaged in this fight is unlikely to become animated over what is now, officially, just another D vs. R legislative dust-up. 

Republicans have lost the heart of the issue -- that ObamaCare is not just another piece of legislation, but rather entails a radical and illegitimate transformation of the American conception of the relationship between citizen and state.  Any rhetoric to this effect can now be pooh-poohed by Democrats, and chalked up to election year hyperbole by a disengaged electorate for whom tax increases are a nuisance, but not decisive, and who -- like too many Republican strategists -- have bought into the liberal paradigm that says the central issue on healthcare is "access," rather than liberty.  (I explained this problem a few days ago.)

I truly hope my reading of the situation is wrong, and that Thomas Lifson, Clarice Feldman, and other good people who support Roberts are right.  But wishes do not give birth to horses, and at the moment I'm seeing only gray where others are finding silver.