"Why do you keep calling it a tax?" Justice Breyer asked the solicitor general during the oral arguments for Obamacare last March.
The whole room burst into laughter.
But apparently not Chief Justice Roberts.
Despite the fact that pretty much every lower court found this tax claim laughable; despite the fact that President Obama indignantly insisted it wasn't a tax; despite the fact that the administration largely ignored the tax question in its defense of the law; despite the fact that the Congress made every effort to insist the mandate penalty was not a tax -- short of carving "this is no tax" with a potato peeler into their collective foreheads . . .
Justice Roberts concluded it is, in fact, a tax.
Yes, yes: I know. Already numerous people I respect are praising Roberts for playing the "long game" (See: Jay Cost, Sean Trende, George Will, Charles Krauthammer, et al.) I get the argument: The decision rolled back the Commerce Clause; it created new political limits on expanding government (in effect, everything the nanny state wants to do now has to be called a tax to get over the constitutional plate); it restored the reputation of the Court so that future conservative decisions will be more readily accepted; it showed Roberts is the tortoise and Obama the hare.
Look, I'll be delighted if all these things turn out to be true. But as a conservative, I'm skeptical of these three-carom-shot approaches to politics. I remember all of the people who wondered whether it would be better if McCain lost in 2008 (including me!). It turns out Ed Koch's mother was right when she told him, "It's always better to win than to lose." Everyone hailing Roberts's brilliance is in effect congratulating Jack for bringing home the magic beans -- before they grow into a giant stalk. He traded the cow of overturning Obamacare now for some "long game" beans that might one day grow into something cool. It is an un-conservative tendency to credit one man with being able to plan that far out into the future.
The argument you hear a lot is that Roberts was a genius for figuring out how to gut the Commerce Clause while still preserving the Commerce Clause. But you know what else he could have done? He could have gutted the Commerce Clause and overturned Obamacare! How? By simply ruling what he believes and signing on with Scalia, Kennedy, Alito, and Thomas. Instead we're being told that win-lose is better than win-win. Not. Buying. It.
Moreover, what Roberts did is not in his job description. Whatever his motivation -- whether it was to defend the Court's reputation or his own, or if it was to deliver some ingenious slow-acting poison to the Nanny State -- that's not what justices are supposed to prioritize. If he's the umpire he claims to be, he should be umping.
Now, I'm not naïve. I understand that the justices take politics -- internal and external -- into account. But they're supposed to hide it better.
June 29, 2012
Jonah Goldberg on the "Decision"
From Jonah Goldberg:
Posted by TS at 2:12 PM