Roberts' ruling: cleverness or cowardice?

Undoubtedly the former, in my opinion, and I am glad that Charles 'The Kraut' Krauthammer in the WaPo agrees with me - did he read my post yesterday, do you think? - although he personally would have preferred a different outcome.  In his article he provides some of the background ambience which is so necessary in judging Judge Roberts:

[H]e carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.

Roberts is also all too well aware of the longterm effects, by which I mean several decades, which flow from SCOTUS rulings:

Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5 to 4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

I think, as does 'The Kraut', that Roberts was prepared to turn somersaults to avoid leading his beloved court into the middle of the ideological nuclear war currently raging between Right and Left in the USA today:

Roberts’s concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

How Obama and his apparatchiks must have been high-fiving in The White House last night, almost unable to believe their incredible good fortune to have a conservative Chief Justice hand them victory on a plate.  And if that does describe their re-action then it goes to show just how 'stoopid' they are!  As Prof. Dov Fischer points out in The American Thinker, what Roberts has actually done is hand the Democrats a couple of IEDs.  First of all, he has quietly scotched the infamous, 70-year old Commerce Clause, an old nag upon which various Federal governments have ridden over people's individual rights since the notorious Wickard ruling in 1942:

It was this very line of Wickard-consistent Supreme Court opinions that served as the basis for a long line of lower federal courts, both district courts and federal appeals courts, choosing to uphold ObamaCare as that bill was tested through the judiciary.  However, with Chief Justice Roberts almost surreptitiously joining with Justices Scalia, Thomas, Alito, and Kennedy in ruling that ObamaCare is barred by the federal Commerce Clause, a new era has begun in Commerce Clause jurisprudence. [...]

There is now a formal United States Supreme Court opinion on the books, overdue by nearly a century, holding that the federal government may not wield the Commerce Clause to impose on American citizens the obligation to buy health insurance or anything else we do not want. 

In other words, or in precise words, from now on if the Federal government wishes to take your money from you it is a tax and they must call it a tax which blows away the lies and obfuscations of Obama and Pelosi who insisted that health care insurance payments were not a tax.

The second achievement of Justice Roberts is, as Prof Fischer points out whilst rubbing his hands with glee, that in the forthcoming election the new tax policy required to pay for Obamacare will be up their in the headlines throughout the campaign.  I'm just glad I don't live 'over there' because the ads from the Romney camp hammering home the new Democrat tax will be endlessly repetitive:

Defining it for what it really is -- a new, enormous federal tax on at least four million Americans  [...] the Chief Justice has lobbed a fat hanging curveball for conservatives to clobber.  The ObamaCare tax does not apply to those who presently are untaxed, and it will not apply to the more wealthy, who will be excused because they carry health insurance anyway. Rather, the President who promised no new taxes against the middle class conclusively has been "outed" by the Chief Justice as having imposed the biggest tax on middle-class Americans in a generation. [My emphasis]

In particular, the Republicans will aim their fire at those Senate seats up for grabs in November and will use this tax schtik to beat the Dems with and will thereby hope to control both Houses of Congress.  According to Prof. Fischer there are 33 Senate seats up for grabs, 23 of which are held by Dems or their Independent supporters.

Finally, as the astute Professor points out, Justice Roberts has slipped a grenade into the scam whereby the Federal government can force States to increase their  Medicaid services by insisting they take government money even if it will lead to eventual bankruptcy:

[T]he Chief Justice, while permitting the federal government to offer states more money to expand their Medicaid rolls beyond their fiscal capabilities, joined with his four conservative colleagues in banning Washington from penalizing states that turn down the federal inducements to march towards bankruptcy. As a result, the working poor will find that the federal government, while taxing them to buy new health coverage, has been left without a mechanism to compel others to pay for the ObamaCare state insurance exchanges.  So the feds will have to pay for it in non-cooperating states that are more fiscally prudent.  Only more taxes can pay for those costs. 

I can only finish this post with two thoughts.  First, if only we had a few more 'Cocklecarrots' like Justice Roberts 'over here'.  And secondly, and this comes from the heart - 'America, how do I love thee, let me count the ways.'

Apologies for typos - I'm in a hurry and will correct later.

 

Comments

[dearieme]

"the single most consequential political act of a democracy — the election of a president": except that in many democracies it isn't. Americans do tend to very parochial.

[David Duff]

Bit picky today, DM, go and watch those dancing Russians, it'll cheer you up!

[JK]

Hopefully this will open in the UK:

http://www.msnbc.msn.com/id/3036789/#48010098

[JK]

Better yet:

http://www.msnbc.msn.com/id/3036789/#48009739

[David Duff]

No show, I'm afraid, JK.

[JK]

Maybe this one then David. Chief Justice Roberts is on drugs.

http://www.realclearpolitics.com/video/2012/06/28/michael_savage_roberts_epilepsy_medication_effects_his_cognition.html

[David Duff]

Crapola, JK, as I believe you say 'over there'!

[Hank]

David

From a strict analysis Roberts restricting the Interstate Commerce and the Necessary and Proper clauses is a good thing and long over due.

Unfortunately the Obamcare law will cause more harm than the gain if it is not repealed.

JK
Really, Michael Savage, sometimes I think he is a DNC plant to embarrass the Republicans.

http://eclecticmeanderings.blogspot.com/>Hank’s Eclectic Meanderings

[Jackson]

They can now tax one for NOT owning a firearm.

[David Duff]

Well, Hank, it will now be up to teh people to decide in November.

Jackson, they'll soon tax you for breathing!

[JK]

Could well be Hank. Truthfully, I'd never heard of the guy til somebody sent me that link.

I did however spend about 4 hours reading the oral arguments from March 29th where Solicitor General Verrilli (for the government) and Esquires Clement (Respondent) & "Friend" Carvin (also arguing against) presented their respective cases before SCOTUS.

Now I'm certainly no lawyer type (heh - if I were, David by now would've engaged his beautiful, helpful blogger team from California for help banning me - despite his effort) but even I being no lawyer, could see where Verrilli however inadvertently laid a clever trap allowing Esquires Clement and Carvin to "help" him make his case.

Hank? I'll look to see if I can re-locate a link to the pdf but here're some of the notes I sent on to a blogger here in the States calling attention to the Esquires' cock-ups mostly.

""" Pivot made by SG page 19. --- Sotomayor to SG line 8 page 23 response line 14. --- BIG PIVOT SG page 40, 41, onto page 45. --- Top of page 54 Res. Clement makes point for SG. Again on 59. *Attention to lines 7 - 19 page 75. --- Carvin [behalf Res] steps in dogshit page 99 lines 13-24 again to page 101. --- SG ceases all pretense on Commerce Clause in rebuttal page 108. --- Dogshit hits fan June 2012. """

I've got the pdf but not the link Hank - shout out if you wish to read legal stuff. (Or, you can find it yourself [maybe] here):

http://thomas.loc.gov/home/thomas.php

[JK]

http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-398-Tuesday.pdf