I think I can speak for a lot of folks in the Blogosphere when I say that yesterday was mentally draining. I read opinion after opinion on the Roberts’s ruling and listened to various talk show hosts talk about the legal and political ramifications. Now, 24 hours later I’m not sure there’s any more clarity. Conjecture is still the name of the game.
I think Charles Krauthammer has it right when he says Roberts was doing everything he could to avoid another Bush v. Gore. When you think about it, what other explanation can there be? The notion that he’s “evolved” like other Supreme Court Souteresque disappointments seems weak to me. This is a guy who belonged to the Federalists Society. But, like Charles says, he’s the Chief Justice and protector of the court. He could have sided with the 4 conservatives and struck down the whole thing but this “it’s a tax” opinion is the ultimate nuance that allows him to protect the commerce clause but avoid the metaphorical (and perhaps real) Molotov cocktails that would have been flung at the Court had it been that 5-4 decision. Not saying he was right to play it this way, just speculating that that’s probably the reasoning. It’s a gamble, like something out of John Grisham legal thriller. Perhaps he is hoping this will lead to political change and perhaps some conservative justices in the future. If Romney gets elected twice, the chances of Ruth Bader Ginsburg outliving his terms are slim. That’s morbid, but no doubt the thought is on a lot of minds.
Here’s something to chew on: What Roberts did, in my mind, was clearly judicial activism but of an unusual sort. He declared Obamacare a tax and threw the whole issue right back to the people of the United States, essentially saying “We’re not gonna bail you out when you screw up at the ballot box anymore.” Thus, did this one act of judicial activism serve to limit the power of the Judicial Branch more than any other decision in history. In other words, is this Obamacare Supreme Court decision the anti-Marbury v. Madison?