The best take on that fateful Thursday came from Ed Morrissey, who quipped:
“But I didn’t know until today that it was Barzini all along.” I tell you, The Godfather explains everything ….
— EdMorrissey (@EdMorrissey) June 28, 2012
Now here is the truth: either Roberts is canny or he is a coward. Either he is a sly, patriotic Machiavellian or a frightened, loyalist turncoat. There is no third possibility.
Forget everything you read from any leftist chattering about “compromise,” “integrity,” “bipartisanship,” and “foregoing ideology.” These are code words which signal unconditional surrender to, and not compromise with, the progressive view.
Consider: just hours before Roberts revealed his enigma, we had Democratic Congresspeoples and lefty pundits thrusting towards microphones with dire warnings, “We better not see a 5-4 ruling driven by politics!” Uncoded, this meant, “They had better not vote against us, or else” and nothing more. For after witnessing the very 5-4 ruling they forecast would tear the Union asunder, they immediately suffered complete amnesia and were full of praise for Roberts’s Ruse.
If a ruse it was. The real question is into whose back did the Chief Justice slip his dagger? Charles Krauthammer, no slouch at fingering phonies, is certain sure Progressivism is now one of the walking dead. He called the Ruse “one of the great constitutional finesses of all time.” Krauthammer figured Roberts figured that—who exactly?—”we” did not want yet another “5 to 4 decision split along ideological lines that might be perceived as partisan and political.” The decision to re-write Obamacare as a tax to save lefties dentist bills that would have come from gnashing their teeth over an overturn, while simultaneously squashing the attempt to expand the Commerce Clause, “draws the line against the inexorable decades-old expansion of congressional power.”
George Will agrees. “Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance”. Will imagines Roberts behind the Court’s arras watching New York Times’ reporters jigging on the Court steps while rubbing his hands together and saying quietly, “Heh, heh, heh.” If only Roberts had a moustache!
“This victory”—yes, victory—”will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers.”
In favor of this favorable interpretation we have Roberts himself. He did win the right to write the majority opinion, because Roberts knew (we all did) that four of the Justices would have voted to uphold any law short of a Constitutional amendment declaring Obama President for life. He knew that three of the justices saw Obamacare for what it was and were poised to strike it down. He, like progressives chanting “compromise”, apparently forgot that not one Republican voted for the law.
But never mind that. The words which convinced Krauthammer and others of the Ruse were words like these:
This case concerns two powers…which must be read carefully to avoid creating a general federal authority akin to the police power…Every day individuals do not do an infinite number of things. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and…empower Congress to make those decisions for him.
Under the Government’s logic, that authorizes Congress to use commerce power to compel citizens to act as Government would have them act…the Government’s logic would justify a mandatory purchase to solve almost any problem…The Framers gave Congress the power to regulate commerce, not to compel it…The Commerce Clause is not a general license to regulate an individual from cradle to grave…
These are strong, manly words, and sworn to not just by Roberts but by Sotomayor, Breyer, and Kagan, lefties all. (Ginsberg signed too, but then petulantly disavowed herself.) It surely appears as if the PBS crowd had just received a dramatic dressing down. Krauthammer and others thus believe that progressives, happy with the immediate benefit of taking over one-sixth (or whatever) of the economy, are also now chastened and will not attempt such boldness in the future.
John Yoo says bollocks to that. In today’s Wall Street Journal, he says that progressives had their fingers in their ears saying “Yeah, yeah, yeah” while receiving their lecture. No lessons learned here. Yoo likens Roberts to Republican Chief Justice Charles Evans Hughes who whimpered whenever then president FDR threw a tantrum. Against his conscience, but afeared of being disparaged in the press and concerned about the legacy of the Court, Hughes hewed to the New Deal line and legitimized that first great increase in government power. And now Roberts, sharing Hughes’s timid temperament, has done the same and “sacrificed fidelity to the Constitution’s original meaning in order to repel an attack on the court.”
And it’s even worse:
Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius’s limits on the Commerce Clause and expand the taxing power even further.
Let us pray that Yoo, smart as he is, is wrong and that Krauthammer, just as sharp as Yoo but less gloomy, is right.