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发帖数: 29846 | 1 By: Patrick J. Buchanan
7/3/2012 06:57 AM
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.
While it is not the job of the Supreme Court “to protect the people from
the consequences of their political choices,” it is the job of the Supreme
Court to pass on the constitutionality of laws.
Did Roberts look at that individual mandate and conclude that it passed the
constitutionality test? Or did he first decide that he did not want to be
the chief justice responsible for destroying the altarpiece of the Obama
presidency and sinking that presidency — and then go searching for a
rationale to do what he had already decided to do?
Here we enter the area of surmise.
In the view of this writer, Roberts desperately does not want to seen by
history as merely a competent but colorless member of the conservative bloc
on the Supreme Court, another reliable vote in the Scalia camp. He does not
want Anthony Kennedy, the swing justice, to be making history, while he is
seen as a predictable conservative vote.
John Roberts aspires to be a man of history, to have this court known to
historians as “the Roberts Court.” And if there is to be a decisive vote
in future great decisions, he wants that vote to be his.
He wants to be seen among the cognitive elite, in this capital city that
voted 93-7 for Obama, as a large and independent thinker. And with this
decision on Obamacare, for which he will be remembered, he has taken a great
leap forward to establishing that new identity.
John Roberts likely has ahead of him a quarter of a century as chief justice
. If he wants to be written of as another John Marshall or Oliver Wendell
Holmes, and not Roger Taney, he must pay the price the city demands. If he
does not wish to be remembered as a tea party justice, he must deliver the
goods. And John Roberts just did.
Already they are saying of him that John Roberts has grown.
Liberals will never again see him in the same light. Nor will his old
comrades. To attain the first, John Roberts is willing to accept the second.
He has made his decision. John Roberts is moving on up. |
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