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Chief Justice Roberts: Souter II?

Written on Tuesday, July 10, 2012 by

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Readers by now will know that the Supreme Court upheld the Obamacare monstrosity, and that the deciding vote was the Chief Justice, Bush-appointee John Glover Roberts (b. 1955). This may well have been a last minute flip-flop, but now Obamacare could just as well be re-named Robertscare.

I’ve written before on courts and Obamacare in Over-ruling Obamacare and Judicial Activism and Obamacare v. Scotus: still more liberal lies, in which I cover issues like the misleading term “judicial activism” as well as the limits to Congress’ power. But this ruling is a key one for the country, and it is hard to understand.

Chief Justice John Glover Roberts
He was meant to be a conservative judge when President G.W. Bush appointed him in 2005. But conservative pundit Ann Coulter, also a qualified lawyer, sounded alarm bells:

“But unfortunately, other than that , we don’t know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever. And it makes no difference that conservatives in the White House are assuring us Roberts can be trusted. We got the exact same assurances from officials working for the last president Bush about David Hackett Souter.”

However, he did say at his confirmation hearing:

“Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”

“But it is a limited role. Nobody ever went to a ball game to see the umpire.”

Exactly the right words, but would this be put into practice?

Bad Republican judicial appointments
Indeed, Souter turned out to be a reliable leftist judge, legislating liberal policy from the bench. And this followed a long line of Republican appointees who ruined the country after they were appointed to the highest court. The horrible decisions of the Court in the 1960s were led by Earl Warren, appointed by Republican President Dwight Eisenhower, who called this appointment “the biggest damned-fool mistake I ever made.” And Harry Blackmun, the author of the infamous Roe v. Wade decision, was appointed by President Richard Nixon.

Ann Coulter has also reminded us that the waffly left-leaning Justice Sandra Day O’Connor was “Reagan’s biggest mistake.” Unfortunately, Reagan uncharacteristically invoked affirmative action, something he normally opposed, because he wanted a woman. (Indeed, after a blistering attack against affirmative action by fellow Justice and Reagan appointee Antonin “Nino” Scalia, she replied, “But, Nino, if it weren’t for affirmative action, I wouldn’t be here.” Quite so!) The usual “swing” vote, Anthony Kennedy, was also a Reagan appointee—although he was great this time in dissenting from Obamacare. Roberts, to his credit, has ruled against race-based affirmative action, with the crisp obvious point, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Not only are Republican presidents inept at picking judges, but the Republicans in general fail to protect the good ones. President Reagan wanted to appoint originalist legal scholar Robert Bork to the Supreme Court, but the Democrats, led by the late, unlamented Teddy Kennedy, launched the most vicious slanderous attack against him, while the Republicans looked on, and in some cases (like future turncoat Arlen Specter), joined in. Fortunately, the great originalist Scalia was confirmed very easily just before. The outstanding Justice Clarence Thomas was also subjected to ferocious slanders and absurd sexual accusations, but fortunately he was confirmed.

Yet when there is a Democrat president appointing far-left judges who would clearly legislate from the bench, the Republicans usually cave. Unfortunately, what we have in Washington is the Evil Party (Dems) vs. the Stupid Gutless Party (GOP). That’s why the Dem appointees vote left as expected, while the Republicans are continually disappointed. However, they have managed to appoint great judges like Scalia and Thomas, as well as Samuel Alito. So while a Republican president is no guarantee of good judges, at least it’s a possibility; a Dem president IS a guarantee of dreadful ones.

Obamacare ruling
The strangest thing was that Roberts even declared that Obamacare’s forcing people to buy health insurance was unconstitutional under the Commerce Clause. After all, if they could force us to buy health insurance, then they could force us to buy broccoli, for example. But then he claimed that it was OK under Congress’ power to tax.

But this is exactly what Obama stridently denied in an interview with George Stephanopoulos in 2009:

STEPHANOPOULOS: Under this mandate, the government is forcing people to spend money and fining them if they don’t. How is that not a tax increase?”
OBAMA: No, tha-tha-that’s not true, George. Eh, for us to say that you’ve gotta take a responsibility to get health insurance is absolutely not a tax increase. …
STEPHANOPOULOS: Well, it may be fair, and it may be good public policy, but for you to say that this isn’t a tax. This just …
OBAMA: No, no. B-b-but George y-y-y-you can’t just make up that language and decide that that’s called a tax increase.
STEPHANOPOULOS: I don’t think I’m making it up. Merriam-Webster Dictionary: “Tax: A charge, usually of money, imposed by authority …”
STEPHANOPOULOS: I wanted to check for myself, but your critics say it is a tax increase.
OBAMA: My critics say everything’s a tax increase!
STEPHANOPOULOS: But you reject that it’s a tax increase?
OBAMA: I absolutely reject that notion.

Obama also pledged that no one making less than $250,000 per year would face a tax increase. So now that Obamacare is a tax, it’s the biggest tax increase in American history.

Just as importantly, it was essential that Obamacare should NOT be considered a tax, otherwise the anti-injunction act would have barred the lawsuit in the first place until the tax had actually been levied.

So the idea of Obamacare as a tax was stridently denied by the eponymous Obama, but also by the logic of the situation. So dissenting Justice Scalia was right to say “the Court today decides to save a statute Congress did not write … [it] regards its strained statutory interpretation as judicial modesty, it is not.” In reality, Roberts gave the green light to lie about one’s intention before his Court.

Conservative support for Roberts
I would be remiss if I didn’t mention some support by conservatives for Roberts. Charles Krauthammer argues that Roberts did it, in his capacity as Chief Justice, to protect the reputation of the Court. But “reputation” is only in the eyes of the far-left mainstream media. And justices are supposed to uphold the Constitution, not some nebulous “reputation.”. Furthermore, Rich Galen used the same sort of argument to justify why C.J. Roberts sided with the leftist to strike down most of Arizona’s immigration law, although Scalia’s dissent pointed out, “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.” Right, argues Galen, now when Roberts knocks down Obamacare, no one will be able to accuse him of partisanship (Lib-speak for “ruling against the Left’s desires”). That worked so well.

Another conservative columnist even called Roberts a genius. First, Roberts ruled that there are limits to what Congress can order under the Commerce Clause. And he ruled that the Federal Government can’t force compliance by withholding their existing medicaid funding, thus protecting the states. And by declaring it a tax, Roberts has given the Dems a highly unpopular tax increase to defend next election, thus greatly helping the GOP’s chances of taking back the White House and Senate.

But it would have been better to rule that the mandate as it stood was not a tax, and challenged Obama and the Dems to go back to Congress and re-legislate it as a tax. That would have been hard to get through. What Roberts did was pass the buck back to Congress, but that is hardly a sure thing.

It actually reminds me of the reverse: President Bush Jr. signed the appalling McCain–Feingold anti-free speech bill, saying that he had grave doubts about its constitutionality, and thought that SCOTUS would overturn it. But this didn’t happen, although Roberts, to his credit, authored some decisions to strike down some of its provisions, such as in Federal Election Commission v. Wisconsin Right to Life, Inc. 2007. Buck–passing didn’t work for Bush either.

What to do now?
Krauthammer is right:

“Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is telling the nation: “Your job, not mine. I won’t make it easy for you.”

This means that Patriots MUST vote for Romney, as I argued in my last column. Romney rightly points out that the only way of defeating Obamacare is to defeat Obama. Some “vote my conscience” types need to hold their noses and vote for Romney anyway. OK, he is not perfect, and there are no guarantees with Romney. But we can guarantee that if Obama wins, then Obamacare is here forever, with all the horrors that entails, and this should prey on your conscience forever.

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