Supremely Political: Did Roberts Pen BOTH Opinions?

Chief Justice Roberts and President Obama in January 2009.

By Matt Rooney | Cross-posted at SaveJersey.com

The ObamaCare backstory gets worse all the time, Save Jerseyans.

We can never really know what happened in chambers. That said, emerging anonymous accounts seem to comport with what we can plainly observe about this repugnant capitulation to unconstitutional, unrestrained big government by Chief Justice John Roberts.

It was supremely political.

Be assured, I’m not leveling this charge simply because I don’t like the decision! The Chief Justice simply didn’t do a very good job of masking his purely tactical motivations.

If you read the conservative Kennedy-Alito-Thomas-Scalia dissent (click here – pdf), one of the first things you’ll notice is how the dissent frequently refers to the majority opinion as the “dissent.” Is the current batch of High Court clerks just sloppy? Or is something else going on here?

I suspect the answer is “yes,” there’s far more to the story than initially meets the eye. On Independence Day Eve, Salon.com cited anonymous sources claiming the Chief Justice wrote BOTH the prevailing ObamaCare decision AND the minority conservative dissent. A couple days before, CBS News added to the narrative by citing another anonymous source who said Justice Anthony Kennedy “was relentless” in trying to lure Roberts back into the fold after he abandoned his own opinion sometime in May/June to uphold the Affordable Care Act under the taxing power…

The Krauthammer/Will crowd persists in their belief that Roberts is a secret genius for tightening up the Commerce Clause. Tea Partiers are convinced he’s a secret liberal who slipped past George W. Bush’s vetters.

I think it’s much more simple than that, Save Jerseyans: he’s a human, with an ego, who chickened out when it was his time to shine and help the Republic.

Calling Roberts a liberal really isn’t fair; this is the Heller and Citizens United Court. But celebrating Roberts’s Commerce Clause language, or suggesting that it’s a fair trade-off for his taxing power apostasy, OR rationalizing that it sets Republicans up for a favorable anti-tax dynamic this fall, is intellectually disingenuous. Such naked apologism also belies the argument that his decision is anything other than 100% politically motivated!

I said it to the Independence Hall Tea Party’s ObamaCare panel on July 4th: Chief Justice Roberts had one job and one job only; to determine whether the Affordable Care Act passed constitutional muster. He rescued the fatally ObamaCare law the Article I, Section 8 taxing and spending power, yet he admits in his decision that the “mandate” isn’t an “indirect” tax (because it taxes inactivity) and doesn’t meet the stringent standard for a direct tax either (because it isn’t properly apportioned). He also refused to view the mandate as  a penalty, even though the word “penalty” is repeatedly used, because he deems the effect to be that of a tax. A drafting defect? Perhaps, but not one within his power to unilaterally correct!

So how could the Affordable Care Act be lawful under the taxing power? Said another way, where does he get the authority to rewrite a federal law and create an entirely novel species of tax in the process?

Roberts overcome this obstacle with a shocking legal shrug; he makes a policy determination, starting that apportionment can’t be a fatal requirement because it would frustrate the purpose of the law (since some states will necessarily have more uninsured individuals than others regardless of its overall population relative to the other states). With all due respect, sir, it’s NOT YOUR JOB TO MAKE THE CONSTITUTION FIT THE BILL! You’ve got it backwards.

But that’s exactly what he did, folks, and the only conceivable reason for an objectively intelligent man to perpetrate such an objectively dumb thing is, again, political. He was worried about his legacy and the “politicization” of the Court in the 2012 Presidential Campaign. He deliberately wrote an opinion that would make virtually no one completely happy by design. Yes, he didn’t let the Commerce Clause continue its almost uninterrupted expansion; but if you and I were besieged in a house surrounded by armed bandits, Save Jerseyans, what good is it to bolt the front door while simultaneously unhinging the back door? The Feds now have authority under the taxing power that they could’ve only dreamed of under the Commerce Clause! There is literally NOTHING they can’t make us do provided the accompanying legislation allows for a “buy your way out by paying a tax” option.

Is that really what Madison, Hamilton and Co. had in mind?

So congratulations, Mr. Chief Justice. Assuming it was your goal, no one can plausibly accuse you of being a tool of the Right after this decision came down! We can, however, rightly adjudge you as the base political animal that we had hoped and prayed you weren’t. The evidence is piling up and it’s not flattering…



Matt Rooney is a New Jersey attorney, noted conservative commentator, and the founder & Blogger-in-Chief of New Jersey’s #1 conservative blog, Save Jersey. You can learn more about Matt and the Christie Revolution by visiting today!