Quotes of the day

However painful it was to read the headline “Obamacare Stands” on Drudge yesterday, Chief Justice Roberts made the right call.

Roberts’s opinion, far from being an act of cowardice or betrayal, is true to the tradition of the early Republic, when the Supreme Court exercised the power of judicial review to strike down federal statutes only very rarely…

There is a larger point. If the only way Americans can defend their liberties is to hide behind the verbiage of a Supreme Court opinion, it’s already too late for freedom here.


Conservatives who are trying to salvage a little “hope and change” from Chief Justice John Roberts’s disastrous ruling in the Obamacare case yesterday argue that the limits the Court placed on the Commerce Clause and the power of the federal government vis à vis the states are victories for conservatives in the long run. But in this case, the short run is the long run: Obamacare will change our society forever–and not for the better.

Liberals are celebrating, not just because Barack Obama’s presidency is no longer just a waste of time, but also because they believe that people will never reject entitlements once they have them. Evidence from around the world proves them right.


This country is hopelessly split along ideological lines, and it seems impossible for either side to gain any lasting advantage over the other. But maybe Roberts has managed to do precisely that. By nominally endorsing an overwhelmingly unpopular bill that is in major trouble anyway, he has created the political space needed to strike directly at the heart of liberal legal theory without inflaming the Democrats.

This, by the way, is exactly what the Warren Court of the 1950s and 1960s failed to do. Insufficiently concerned about political fallout, the liberals on that court plunged ahead with leftist policymaking from the bench. As a consequence, conservatives grew acutely aware of the dangers inherent to liberal judicial activism, organized politically to fight back, and thus was ultimately born the Rehnquist Court, which rolled back many of the excesses of the Warren years.

But how do conservatives continue their judicial project without similarly inflamming the left and stalling their own agenda in its tracks? Well, just maybe Chief Justice John Roberts showed the way yesterday. It’s all about taking opportunities as they present themselves, not over-reaching, and playing the long game.


[I]f the underlying mandate is otherwise unconstitutional, as Roberts concluded, how does adding a penalty make it okay? Under this precedent, Congress could theoretically mandate anything it wants and slap on a nominal penalty and defend it in Court as a tax after the fact. To use a popular example, the government can now still force you to purchase broccoli, as long as the punishment is a fine rather than imprisonment…

In a broader sense, this case was testing the assumption that the Supreme Court would never invalidate a major act of Congress. Even if Roberts had only agreed to strike down the mandate, it would have sent a powerful message that the Supreme Court is willing to protect the Constitution from further encroachments. But I fear when all is said and done, after this case, future lawmakers will still feel confident in the assumption that they can pass whatever they want, and if the legislation is major enough, the Supreme Court will find some sort of excuse to uphold it.


Some will suggest that this is no victory at all, given the Court’s ruling that the money one must pay for failing to obtain insurance can be supported as a use of Congress’s taxing power. However, by confining within the taxing power the ability of Congress to adopt such schemes, the Court has greatly limited Congress’s ability and political appetite to attempt them in the future…

Another thing to note is that Chief Justice Roberts’s opinion on the taxing power is limited. He noted that it could not be considered punitive because the amount citizens are required to pay for not having insurance is far less than they would have to pay to obtain insurance. He strongly suggests that, if Congress were to require citizens to pay an amount greater than the costs of insurance, that would constitute a penalty, and thus would be unconstitutional.


I would find this perspective [that Roberts’s opinion was a victory for smaller government] considerably more persuasive if I could envision how, exactly, this war of “slow constriction” is supposed to play out. Does anyone really believe that a Roberts-led Court is likely to revisit the constitutionality of the major post-New Deal social programs? That it’s going to overturn child labor laws and minimum wage laws, or shutter regulatory agencies? Whatever precedent was set yesterday, that kind of genuine counter-revolution seems highly unlikely…

In an intellectual sense, the logic of the health care mandate may indeed have been “pregnant with rampant statism,” as Will puts it. But in terms of practical politics, the health care bill was itself the most statist act that’s likely to pass Congress over the next decade at least, and maybe in John Roberts’ lifetime. And by upholding it, Roberts handed liberals a victory in the scope-of-government war that matters most to them, while at worst setting them up to lose some less important skirmishes somewhere down the road.


In his remarkable health care opinion Thursday, the chief justice of the Supreme Court restrained the power of his own institution. He decided not to use judicial power to overrule the democratic process. He decided not to provoke a potential institutional crisis. Granted, he had to imagine a law slightly different than the one that was passed in order to get the result he wanted, but Roberts’s decision still represents a moment of, if I can say so, Burkean minimalism and self-control…

And here’s the biggest gift that Roberts gave to the nation: By restraining the power of the court to shape health care policy, he opened up space for the rest of us to shape that policy through the political process. By modestly refraining from rewriting health care laws himself, he has given voters and politicians more room to be audacious.


What did Roberts get? Institutional respect for the Court from people who have no respect for the Courts unless they win? That’s not a prize one can count on to last long. If you think liberals we say, “we’ll let it slide next time we lose a 5-4 decision and promise to never again push the boundaries of the Commerce Clause because Roberts gave us ObamaCare” you’ve missed the last 80 or 90 years of liberalism and the courts. Maybe I missed something but the New Deal and Warren courts* were happy to overturn decades and decades of law and never felt the need to “throw a bone” to conservatives (or people who thought the words of the Constitution had some set meanings).

In fact, Roberts has actually lost something very important (if this theory is right)…he’s shown that with enough bullying and threats against the legitimacy of his Court, he’ll give in.


There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act.

I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series of decisions really might have irrevocably hurt the court’s reputation for independence.

But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues.

All told, it is easier for the conservative wing of the court to make some significant rulings in some other policy areas.


I don’t know what’s in Roberts’s heart, but no court watcher I’ve heard from puts much weight on the idea that Roberts did anything other than reason backward from the result he wanted in order to buy respect from the court’s critics at the expense of his own beliefs…

That so few people seem to care augurs poorly for the rule of law and the auspices of our republic.


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David Strom 3:31 PM on November 30, 2022