Saturday, June 30, 2012

John Roberts and a Vietnamese Village

No one need read the entrails of a goat to understand the decision five Supreme Court justices rendered last Thursday regarding the constitutionality of the so-called Obamacare individual mandate.

With the dust settling on that decision—the mandate is constitutional not under the Commerce Clause, but as a newly-invented “tax” within Congress’s power to impose—focus is shifting to Chief Justice John Roberts’s vote that gave the four Court liberals and President Obama the constitutional victory.

Serious people are asking why Roberts wrote so patently an indefensible opinion, distorting reality to find a tax when there is no tax.

There are some who believe that Roberts’s whole-cloth tax rationale masked the Chief Justice’s clever Machiavellian plan to prevent the Commerce Clause’s further engorgement, tilt the election toward Mitt Romney, and otherwise in some not apparent manner do damage to the Court’s enemies.

Other commentators, preeminently Charles Krauthammer, argue that Roberts—who literally sat still when Obama insulted the Court and some of its members in person in front of Congress, the American people, and the world—is still hearing echoes of Bush v. Gore.  They believe, with some justification, that the Chief Justice feared his Court would again be held in disrepute if a 5-4 conservative bloc ruled Obamacare unconstitutional.  Indeed, in the last few weeks Obama himself, some members of his administration, a few Congressmen and Senator Patrick Leahy unconscionably told the Supreme Court it better not hold the mandate, let alone the rest of Obamacare, unconstitutional.

If this is why Roberts—otherwise a card-carrying judicial conservative, and staunch supporter of judicial restraint—caved in and ruled Obamacare constitutional, he made a serious miscalculation.  His tortured majority opinion has not only sullied his own reputation.  It has confirmed the view of many that the Supreme Court is just another pragmatic political institution—to be distrusted, even scorned.

One is reminded of the perhaps apocryphal Vietnam War comment, attributed to an unnamed American officer, to the effect that “to save the village, it had to be destroyed.”