Conservatives are upset about Chief Justice John Roberts’ decision to vote in favor of saving ObamaCare(Tax). That anger is unsurprising.
He did, after all, reportedly first side with the conservative wing of the court — before bolting to uphold the law. His decision — hailed by ObamaCare supporters as a display of nonpartisanship and noble statesmanship – was an affront to those who believed him to be an originalist (or at least a strict constructionist). And, quite frankly, his decision was the incorrect one. So yes, there is anger.
But it is unfair to describe the conservative reaction — as Adam Serwer did in Mother Jones — as being on par with the liberal freakout that occurred in the weeks prior to the ruling. For heaven’s sake, guys, James Fallows said there was a slow motion coup going on in our country. (And he said that before the ruling!) The political left prepared for what they thought would be a defeat by attacking the legitimacy of the institution of the court.
That is worlds away from being angered by the ultimate decision reached by the court.
Conservatives had a few problems with the ruling. First, as I have repeatedly detailed, Roberts was guilty of having legislated from the bench. This is highly problematic for several reasons, not least of which is that conservatives have spent decades working to appoint and confirm judges who would eschew the practice.
Faced with a political problem — Roberts was reportedly concerned about backlash from a partisan verdict overturning the law — the Chief Justice apparently decided to uphold the individual mandate (tax) (whatever?) — and then worked backward in order to retroactively justify that decision.
And he didn’t do a very good job. Because in the process, he played fast and loose with the very meaning of the words. And this is consequential beyond even this highly important decision. Words mean things. And when we chip away at their specific meaning, the consequences are hard to predict.
Think about this for a moment. The Chief Justice of the Supreme Court, our nation’s highest ranking jurist, saw little reason to distinguish between a tax (a means of collecting revenue) and a penalty (a punishment for not complying with the wishes of the state). Going forward, does this now change the meaning of “tax”? I think it does.
In his zeal to protect the institution of the Supreme Court — a noble goal, I might add, but hardly a justifiable reason to subvert the rule of law — Roberts ironically damaged its legitimacy by making it clear the ends (and not the process) matters most.
Rather than ruling on the law — or even the arguments made by the administration — Roberts decided that the law was constitutional (although not in the way anyone thought). That’s awfully generous of him, but it’s not his job. The Supreme Court isn’t a body designed to clean up and fix faulty laws. As it has done since Marshall, the court simply determines whether or not the law is in accordance with the Constitution. It’s not an easy task — and it’s certainly political — but it’s one that shouldn’t be treated so poorly.
Roberts’ decision wasn’t simply bad because it was wrong. It was bad because it wasn’t serious.