About Chief Justice Roberts . . . . A counterintuitive observation from James in Hayward

John RobertsJames in Hayward thinks that the Supreme Court’s Obamacare decision might have been a blessing in disguise:

Yep, John looks better all the while. If SCOTUS had knocked down that utopian hogwash, Demorats would be having a field day parroting about how the Repubs have destroyed America’s chance for decent health care. I don’t think the Justice was being blackmailed, I think he had contacts in Canada who informed him of the pub gossip.

And have you considered that Obama and Putin are two sides of the same fool’s gold coin? Perhaps a Euro.

History is made up of “what ifs.” Certainly Obama would be in a more powerful position now if he didn’t have Obamacare and could spend his time decrying Republican cruelty. As it is, even with all the media cover he’s been getting, Americans are getting a good look at socialism’s reality.

(An aside: I love James’ neologism — “Demorats”.)

Conservatives will have to take many small steps to reclaim America

One of my favorite blogfriends sent me a link to John Yoo’s article excoriating Justice Robert’s decision in the harshest terms.  Yoo states plainly that the decision spells the end of individualism in America, since it expands the government’s taxing power to encompass everything.  Those who seek a silver lining (or ponies or lemonade) are deluding themselves, Yoo argues:

All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program’s expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts’s opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts’s tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress’s power to tax.

[snip]

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius’s limits on the Commerce Clause and expand the taxing power even further. After the Hughes court switch, FDR replaced retiring Justices with a pro-New Deal majority, and the court upheld any and all expansions of federal power over the economy and society. The court did not overturn a piece of legislation under the Commerce Clause for 60 years.

Yoo is correct about the decision’s effect, and new evidence showing that Roberts was motivated more by politics than constitutionalism.  Nevertheless, this war is not over as long as we don’t surrender.

Rightly or wrongly, the bottom line is that the Supreme Court will not pull conservative’s political chestnuts out of the fire.  America is stuck with the government the majority elects.  Conservatives sat on their collective backsides for 40 years as liberals took over one institution after another.  They sowed, they reap.  We weep.

John Will is a Brazilian Jujitsu martial artist who makes an interesting point when he teaches, one that sank into my brain and that still surfaces periodically when I get overwhelmed by things:  we tend to get into trouble because we’re unaware that we’re heading into trouble.  Few of us race to disaster.  Instead, we head that way step by unwitting step.  We can pull back at any time, but we don’t.  If we were at the water’s edge, you would see that few of us jump into the deep end.  Instead, we just keep walking, unaware that the water is rising, right up until it hits our mouth.  That’s bad.  What’s really bad, though, is that we think we can take a giant leap and suddenly be on dry land.  That’s not what happens.  Sadly, too many who assume that a giant leap is all there is, end up panicking when the leap fails — and there they are, stranded and helpless.

Will’s point is that, whether in jujitsu or life, one cannot instantly and completely pivot away from a slowly developing disaster.  If it took 48 steps to get you in up to your nose, it might take 49 to get you back to dry land.  In jujitsu, that means a victory might be freeing your elbow or your knee, so that you can go on to liberate the next body part from your opponent’s grip.  In politics, a start might be holding the House and taking the White House.  Not as good as all three political branches, but better than just one.

Here’s the deal:  We’ve had decades to get ourselves into this fix.  We — that is, we conservatives — will not reclaim the country in November.  Nevertheless, this election, and the next election, and the election after that, each represents one of the small steps we must take so that the Supreme Court ruling is a tocsin and not a death knell.

Second guesses and theories about the Supreme Court decision and its aftermath

In the days and weeks preceding oral argument before the Supreme Court on ObamaCare, all Democrat (politicians and pundits) and a surprising number of conservatives were convinced that the Supreme Court would sustain ObamaCare.  After two and a half days of argument, the conventional wisdom has suddenly shifted.  Democrats are sure they’ll lose, and conservatives are cautiously optimistic.

With this radical shift, something else has happened:  Democrats are boasting, and conservatives are worrying, that a Supreme Court loss is the best thing that could happen to the Democrats.  Both claim that if the mandate alone goes, the remainder of ObamaCare will survive and be better than ever; and both also claim that if the entire bill goes down, ObamaCare’s loss will reinvigorate the base in November, while possible ensuing chaos in the health care world will so frighten ordinary Americans that they’ll demand a big government solution.

The Democrats’ spin make sense.  It’s all they can do.  The conservatives’ spin is less easy to understand.  Are conservatives guarding against hubris?  Is this a case of “hope for the worst, but plan for the best”?  Our we overestimating the Obama-ite’s tactical brilliance?  The last is intriguing, actually.  The theory goes that Obama and Co. decided that they could make more hay out of a loss than a victory, so they actually encouraged the Solicitor General to humiliate himself and basically appear like an articulate idiot.  They want to lose, because it sets them up for some even more nefarious plan.

There is such a thing as over-thinking things.  Under the above world view, it is impossible for conservatives to win.  If we lose before the Supreme Court, we lose.  If we win before the Supreme Court, we lose.  This is an unsustainable mindset.  You have to fight your battles as they come.  It is possible to win most of the battles and lose the war, but it’s more likely that the party with the greatest number of victories in separate battles also wins the war.  The one thing that’s certain is that, if you lose all the battles, you also lose the war.

I have been over-thinking something myself.  As jj noted in his comment to an earlier post, it is unconscionable that Elena Kagan is one of the sitting justices for this ObamaCare decision.  She was an important part of its passage, not to mention an ardent cheerleader.  Each of these facts creates an overwhelming appearance of bias and impropriety that, with nothing more, should force a judge’s recusal.  Yet Kagan didn’t recuse herself and, it seems, Chief Justice Roberts didn’t push the issue.

I’m wondering if they struck a deal….

Roberts must have realized that Obama’s base would become something close to insane, and probably violently so, if Kagan was knocked off this panel.  Perhaps he said to her something along the lines of, “You can stay, and you can help them out in oral argument, but you vote with me when the time comes.”  His role as Chief Justice means that he has considerable power to make Kagan’s Supreme Court tenure pleasant or unpleasant.  I can imagine him using a little polite blackmail.

Speaking Roberts, in my humble estimation, he has been the best Chief Justice in my remembered lifetime.  I have a great deal of faith in his management skills and, if he believes ObamaCare should be struck down in its entirety, I can see him making it happen — especially when it comes to encouraging Justice Kennedy to make the right decision.  (And jj, you’re right about that too, which is that it’s unconscionable that a man of very weak principles, although he does seem to side with individual liberties, is the one who seems to bear the whole burden of upholding the Constitution’s integrity.)