And so it is: 5-4—and as it all turns out, we were focusing on the wrong guy. The swing vote wasn’t Justice Anthony Kennedy—it was Chief Justice John Roberts. For the second time in a week, he switches to vote with the four liberals. In an oddly-worded opinion (which seems at times to contradict itself) the chief justice completely abandoned any of the oral arguments made —on either side— and ruled in favor of Obamacare, on the grounds that the mandate was a “tax”.
The Obama administration endlessly swore up and down that the mandate was not a tax— to the point of the President himself chiding George Stephanopoulos on the latter’s pointing to the dictionary definition of the term.
Interestingly enough, there have been semi-reports to the effect that what is now the dissenting opinion— written by Justice Kennedy, and joined by Justices Scalia, Thomas, and Alito—was originally the majority opinion, that Justice Ginsberg’s concurrence was originally the dissent… and that, in short, for a strange and unfathomable reason… the chief justice switched his vote at the last minute.
I don’t know whether that’s true or not— and frankly, it changes nothing. The ruling’s final—what’s done’s done. And we’re stuck with this monstrosity of a law— at least, God willing, until January 20th of next year, when President Mitt Romney takes office and gives us that waiver.
In the meantime, we have to keep in mind this simple lesson from Thursday’s teachable moment:
Don’t assume that because it walks, looks, and sounds like a duck… it’s a duck.
Let’s be absolutely clear: Chief Justice Roberts just proved himself to be anything but the defender of the Constitution he pledged to be. Either he was pushed into switching his decision, for whatever reason (possibly involving a certain mantra from the Left about his need to “preserve his legacy”, whatever that means), which makes him, to be blunt, unworthy of his office and unable to carry out its duties… or else, he is not the conservative, originalist justice we all thought him to be— and, in the end, has become an activist turncoat a la Harry Blackmun or David Souter.
Glenn Beck thinks it’s the latter; Rush Limbaugh is entertaining the former. All I know is this: we must never again take for granted that a Republican-appointed justice will rule with a Conservative theory— even if (I would say, especially if) he’d consistently ruled in favor of that Republican president’s policies. All that proves— when one links that with these two rulings in favor of Obama— is that Chief Justice Roberts believes in little more than judicial restraint— with little other guiding philosophy than that. As far as he’s concerned (and he even writes this in his opinion), he’s just a “referee”— the burden’s on us, for voting these people in. (With all due respect, Chief Justice… referees call out players who break the rules, and eject them from the game. Frankly, Your Honor, you didn’t do so.)
Justice Hugo Black consistently ruled in favor of FDR’s policies— culminating in one of the greatest mistakes of his judicial career, the ruling in favor of the internment of Japanese-Americans, in Korematsu v. United States. (He would later express his deepest regrets, concerning that decision.) He eventually changed— and became legendary as a “literalist” justice, an originalist’s originalist, admired by National Review and quoted by Glenn Beck.
Chief Justice Earl Warren started out as an activist from the beginning— but a “good” activist! Brown v. Board of Education was, effectively, a ruling supportive of Ike’s push for civil rights. (As Robert Bork’s noted— Warren didn’t really use the Constitution to make that ruling, although he could have, with no problem. Instead, he went the “legislate-from-the-bench” route, using statistics and figures as his main line of reasoning. A great ruling— but that wasn’t the appropriate means.) Alas… he pushed further, through the 1960’s— using the banner of “civil rights” to impose, among other things, restraints on law enforcement beyond Miranda that, as Ann Coulter enjoys pointing out, have probably not turned out for the best.
With path will John Roberts choose? Who knows— but looking back, one wonders why President Bush had nominated him as automatic Chief Justice, instead of taking a cue from President Reagan and promoting an established conservative justice (like, say, Antonin Scalia) to leadership.
(White House photo)