I was driving along in the car and, suddenly, the phrase “Roe v. Wade” popped into my head. In 1973, the Supreme Court waded into what should have been a state-by-state legislative matter, and created the most vicious 39 year fight in America since the Civil War. One side found the decision completely invalid, while the other side became so invested in its validity that it almost became a one-issue party — and, moreover, a one-issue party that became ever more extreme in its defense of its victory. By parsing the decision as he did, Justice Roberts prevented another American civil war.
When I returned home and turned on my computer, I discovered that Charles Krauthammer was thinking along the same lines. If I’m in sync with Krauthammer, I’m clearly in good company.
Krauthammer’s view is that Roberts wears two hats. The first hat is the constitutional conservative, which kicked in to prevent him from allowing a vast expansion of the Commerce Clause. The second hat is as the Supreme Court’s custodian. That second hat requires Roberts to protect a Court that’s been under a shadow since the decisions in Roe v. Wade (favoring the Dems) and Bush v. Gore (favor the Republicans). So, after wearing his conservative hat to deal with the Commerce Clause, Roberts still had some work left to do:
That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the Court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger Courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.
More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5–4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.
Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the Court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5–4 decision split along ideological lines that might be perceived as partisan and political.
National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the Court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.
I think Krauthammer’s analysis is correct. Roberts didn’t rule as he did because of his seizure medicine or because he was blackmailed. He ruled this way because, perhaps rightly, he was keeping a legislative problem in the legislative sphere. The American voters, by putting Democrats into Congress and the White House, broke the American system. They now own that broken system and it’s up to them to fix it. In this case, if the voters are smart enough, they’ll elect Republicans by a large majority. If they’re not smart enough, we’re in for a lot more breakage.
Viewed this way, Roberts did the right thing. He protected the Supreme Court’s integrity and he made the American people responsible for their own stupidity.
The best bet for the coming months is that Obama’s base will go home happy, and that he will not be able to rally them for the election. They’ll be like the person who ate too much at dinner and sits there in a stupor, even as the roof falls on his head. Unfortunately for Obama, Romney will be able to rally his base. If you thought 2010 was the year of the Tea Party, wait until you see the summer of 2012. Like 2012, Tea Partiers are up in arms; and unlike (and better than) 2012, this time they’re already organized with mailing lists, data bases, and vast amounts of political and protest experience.
Even better, after Americans suffered through months of the drug-addled, filthy, violent Occupy movement, the media is going to find it impossible to paint clean, polite, educated, employed Tea Partiers as crazed radicals. This summer, the Tea Party will have traction, especially because the Supreme Court, in ruling in Obama’s favor, put a name on Obama’s conduct: taxes on the middle class.
That’s all good. What’s bad is that, as I noted in my original post on the subject, the Supreme Court has managed to allow taxes to have the scope of the Commerce Clause: From this day forward, Congress can not only tax activity, it can also tax inactivity. Long after Obama is gone from office, that legacy will remain. The only saving grace is that taxes require simple majorities. Easy come, easy go, one might say — except that taxes never go away easy, do they?