Last night, I watched the estimable Charles Krauthammer, (whom I greatly admire) tie himself in knots, in front of millions, attempting to understand just what the heck Roberts was doing in his vote, and opinion, to uphold Obamacare.
In the end, Krauthammer failed. He was unable to justify, let alone explain, what Roberts did, or why.
But it’s obvious. As one who views himself as the custodian of the Court’s legacy, and who is obviously concerned, above all else, as to what the “Inside the Beltway” intelligencia will say about him, Roberts, ever the good conservative, focused on precedent, and went all the way back to the Warren Court, and was thus able to find “penumbras” and “emanations” in the ACA that enabled him to discern that a mandate is not a tax, except when it is, or rather, either, or both are the case, except when they are a penalty, in which case, they aren’t. Clear?
No wonder Krauthammer looked and sounded like he was receiving an on-air prostrate exam.
But conservatives have no reason to fear what Roberts might do in the future. For unlike the Warren Court, which attempted to delve into the miasma of the Founding Fathers’ minds, and thus discern these “penumbras” and “emanations” in the Constitution that somehow allowed a perverse interpetation of the right to privacy, Roberts, ever the “true” conservative, merely delved into the ACA inself, to find these selfsame “P and E”s in the ACA, thus allowing him to hold it constitutional, while at the same time antagonizing both of the four member liberal and conservative blocks on the Court.
It is sobering to ponder that had Roberts applied the same, well..er, logic, to the Court’s 2000 decision in Bush v. Gore, that he would likely have decided that Ralph Nader was the next president.