Chief Justice Roberts: Coward or Evil Genius?

Both sides of the political spectrum were shocked by the Court’s Obamacare decision. For weeks discussions have surrounded whether the Justices would merely strike down the individual mandate or the entire law. The president and his supporters had already begun to attack the court as extremely conservative, racist, etc. Conservatives were already crafting which twitter hashtags they would use when the law was struck down.

Obviously the progressive community was over-joyed by the surprise Supreme Court decision upholding the vast majority of the Obamacare legislation. And I will admit that many of my conservative colleagues were ready to sit Shiva for the future of this country

There was another reaction by some conservatives called Justice Roberts is an Evil Genius (OK maybe not evil but very crafty).

Justice Roberts was seen as a strict constitutionalist, a conservative judge. But he is also aware of the role of the court in the constitution and its legacy. This theory says the Chief Justice purposely ruled in a way that would extract the court from the healthcare argument, but making a major victory for conservatives by limiting the government interference on our everyday lives, and making President Obama look bad by pointing out his tax vs. mandate hypocrisy.

I don’t buy that argument in the least.

At the heart of the argument is Robert’s decision limited some significant government excesses. The ruling limited the broad interpretation of the Constitution’s Commerce and Necessary and Proper clauses significantly and it limited the Federal Government's power to coerce the states into altering their laws.

What that argument doesn’t take into account is by calling the mandate a tax, Roberts gave the government an end-around any assaults on the Constitution’s Commerce and Necessary and Proper clauses. The Chief Justice ruled the Obamacare mandate violated the Commerce Clause (joined by the Court's conservative justices) but he also said that the mandate fell within Congress's power to tax (joined by the Court's liberal justices). This restraint on federal power had no real restraint, and worse, the Chief Justice had to rewrite the statute, calling the mandate a tax, order to salvage it.

According to many reports including the liberal-leaning CBS news, Roberts had originally voted against the law, but crumbled under the public pressure from the president and progressive groups.

There were countless news articles in May warning of damage to the Court - and to Roberts' reputation - if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld. Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint. According to the reports it was around this time that it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.

That’s when Roberts came up with the calling the mandate a tax gambit.

Throughout the original Obamacare discussions in Congress, President Obama argued that the mandate was not a tax (as that would be a violation of his promise not to raise taxes on middle class Americans).

During a Sept 20, 2009 appearance on the ABC Sunday Interviews program, This Week, George Stephanopoulos argued with the President about his contention the individual mandate in Obamacare was not a tax increase,

"That may be," Mr. Stephanopoulos responded, "but it's still a tax increase." (In fact, uncompensated care accounts for about only 2.2% of national health spending today, but that's another subject.)

Mr. Obama: "No. That's not true, George. The—for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you anymore . . ." In other words, like parents talking to their children, this levy—don't call it a tax—is for your own good.

Mr. Stephanopoulos tried again: "But it may be fair, it may be good public policy—"

Mr. Obama: "No, but—but, George, you—you can't just make up that language and decide that that's called a tax increase.. ..."

However during court arguments the government lawyers said it was not a mandate but a tax.

Immediately after the court decision was announced last Thursday, the White House went back to its position that the mandate was a penalty not a tax.

On Friday, press secretary Jay Carney went on said the "penalty" would affect only about 1 percent of Americans, those who refuse to get health insurance.

"It's a penalty, because you have a choice. You don't have a choice to pay your taxes, right?" Carney said.

In the end, this decision gives the federal government unlimited power to impose new purchase mandates, The Supreme court will find them constitutional as long as Congress calls them taxes. The Government wants you to buy a Chevy Volt? Put a major tax on those who don't buy one. Hate broccoli? Tough! The government can now put a tax on Americans who don’t eat broccoli. Seem far-fetched? Well not after Justice Roberts’ decision.

Understand that we almost never hear about the inner-workings of the Supreme Court, how votes change etc. In fact when the justices discuss cases and cast their initial votes, the meetings include only the nine members - no law clerks or secretaries are permitted. The justices are notoriously close-lipped and so are their clerks.

But there is nothing standard about this case and word of Roberts' unusual shift leaked widely within the Court, and is known among law clerks, chambers' aides, secretaries and eventually to the press.

In the end what makes the Supreme Court’s decision so disturbing was the lack of independence of the court’s decision. Just imagine if the Warren Court listened to Democratic Party pressure that segregation was right for America. Whether one agrees or disagrees with the court’s decision, the fact is the reason behind the decision was wrong. Obamacare will always be the decision made by a Chief Justice who did not have the courage to take a stand either way—a jurist who reinterpreted a law instead of ruling on its constitutionality.

Instead of doing his job Chief Justice Roberts succumbed to pressure because he didn’t want to be remember as the man who struck down Obamacare—a very sad day for the constitutional separation of powers.