- The Washington Times - Friday, June 29, 2012

Conservative opinion on Chief Justice John Roberts in the wake of Thursday’s Obamacare decision is as divided as the high court itself. To some, he is a traitor to the right who passed up an opportunity to nullify the “signature achievement” of the Obama administration. To others, he is a judicial genius who deftly navigated the middle ground on the case to destroy the most damaging leftist arguments and leave the detested law standing but wounded, perhaps fatally.

The conservative assault on Chief Justice Roberts is driven primarily by the fact that Obamacare survived. Throwing the law out entirely would have been a satisfying and definitive outcome. That the George W. Bush-appointed chief judge supplied the deciding vote that retained the law seemed like a willful act of betrayal. As one slogan making the rounds on social media went, “I can finally agree it is Bush’s fault.”

The headline version of events announced that Chief Justice Roberts sided with the liberals, but this wasn’t a straight 5-4 decision. Justices on both sides of the case concurred and dissented in parts. While the chief justice did accept a small portion of the administration’s case - that the Congress has the power to levy a tax to coerce people into buying health insurance - in other respects, he sided with the conservative wing.

A significant aspect of the decision, swatting back the left’s expansive view of the Commerce Clause, is something that should please conservatives. This was a precedent-setting rebuke to the pernicious argument that extended the regulation of “interstate commerce” all the way from its intended purpose to allowing Congress to govern every aspect of individual life.

Associate Justice Ruth Bader Ginsburg opined that the argument that Congress couldn’t use the Commerce Clause as a universal regulator was “difficult to fathom.” She wrote that this notion of limited congressional power gets “no force from our precedent and for that reason alone warrants disapprobation.” She groused that Chief Justice Roberts‘ “crabbed reading of the Commerce Clause harks back to the era in which the court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”

Letting the individual mandate and thus Obamacare survive on the misguided tax rationale is a more complicated point. Chief Justice Roberts may have been motivated by a sense of judicial restraint. Some argue he was engaged in political chess, exposing President Obama’s hypocrisy in denying that Obamacare imposes crippling tax burdens on individuals and businesses. The most pro-Roberts spin imagines him playing the liberal wing like a violin, knowing they would be in lockstep support of any rationale that would preserve Obamacare and letting them swallow this political poison pill.

Conservatives who wanted the Supreme Court to ride to America’s rescue from Obamacare should take note of Chief Justice Roberts‘ admonition that the nation’s elective leaders “can be thrown out of office if the people disagree with them.” It is indeed better that elections, not judges, determine the course and fate of the Republic.

The Washington Times