For John Roberts, it is Palm Sunday.
Out of relief and gratitude for his having saved Obamacare, he is being compared to John Marshall and Oliver Wendell Holmes.
Liberal commentators are burbling that his act of statesmanship has shown us the way to the sunny uplands of a new consensus. If only Republicans will follow Roberts’ bold and brave example, and agree to new revenues, the dark days of partisan acrimony and tea party intransigence could be behind us.
Yet imagine if Justice Stephen Breyer had crossed over from the liberal bench to join Antonin Scalia, Sam Alito, Clarence Thomas and Anthony Kennedy in striking down Obamacare. Those hailing John Roberts for his independence would be giving Breyer a public caning for desertion of principle.
Why did Roberts do it? Why did this respected conservative uphold what still seems to be a dictatorial seizure of power—to order every citizen to buy health insurance or be punished and fined?
Congress can do this, wrote Roberts, because even if President Obama and his solicitor general insist the fine is not a tax, we can call it a tax:
“If a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. … If the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”
Roberts is saying that if Congress, to stimulate the economy, orders every middle-class American to buy a new car or face a $5,000 fine, such a mandate is within its power.
Now, Congress can indeed offer tax credits for buying a new car. But if a man would prefer to bank his money and not buy a new car, can Congress order him to buy one—and fine him if he refuses?
Roberts has just said that Congress has that power.
Clearly, the chief justice was searching for a way not to declare the individual mandate unconstitutional. But to do so, he had to go through the tortured reasoning of redefining as a tax what its author and its chief advocates have repeatedly insisted is not a tax.
Why did he do it? One reason Roberts gives is his innate conservatism.
As he wrote in his opinion: “We (the Court) possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
This is a sentiment many of us seek in a jurist in a republic: a disposition to defer to the elected branches to set policy and make law. But Roberts here raises a grave question—about himself.