The media from talk radio to the New York Times has chewed the Obamacare opinion like a dog with a steak bone. Legal commentators have examined it from all angles along with the motives of Chief Justice John Roberts and seem to arrived at somewhere, but nobodies quite sure where. It’s basic finding: Obamacare is a tax increase and not forced purchase of insurance under the authority of the Commerce Clause is easy enough to understand, even if it is a legal stretch. What has the
media buzzing is Justice Roberts. Ostensibly a Conservative, and thus vilified by Liberals before the opinion was released, he appears to have double crossed other Conservatives on the Court and for some reason sided with the four Liberals. That’s what fuels the debate. Suddenly the New York Times thinks he’s another Oliver Wendell Holmes instead of a reactionary hack which was their opinion last week. Conservatives, who looked on the Court as a last bastion of common sense in a sea of left wing madness, are stunned by this betrayal. It’s as if Ronald Reagan had posed hugging Fidel Castro.
The dissenting opinion refers to Roberts Majority Opinion as sophistry. Strong language for this bunch of polite and dignified bunch. The Sophists were teachers in ancient Greece. For a price they would teach students “wisdom.” The tools they used were language and arguing skills. In modern usage sophistry has come to mean specious arguments filled with convoluted and deceptive language. Justices of the Supreme Court do not talk to each other like this. The Dissenters are obviously angry over Roberts, but we don’t know why. We may never know, and after November we may not care. Some think Roberts was throwing the Liberal wing a bone because he plans on turning on them on the affirmative action and voting rights cases that are coming up. Who knows?
I suspect [that’s the same as a guess] that what happened was this. Roberts and all of the Justices live, work, and socialize in Washington’s most rarified atmosphere. How they’re thought of by the faculty of Harvard and Yale Law Schools is important to them. How legal commentators write about their opinions is what makes their reputations, not what Rush Limbaugh may say about them out in the hinterlands. I think Roberts didn’t want to be subjected to the drumbeat of criticism that he’d been getting from the Left. He didn’t want to sit in front of the President at the next State of the Union speech and be criticized without being able to respond, as he did last time. This opinion means that if Obama is re-elected that Roberts is going to be praised and the Court will be referred to as the” Roberts Court” in the same way that we had the Warren Court.
In the pond where Roberts swims that’s important. Simply put, if he joins the Conservatives and overturns Obamacare when he shows up to give the commencement speech at some Ivy League school next spring he would be booed and picketed. Graduates would turn their backs on him when he got up to speak. Law Review articles would compete to criticize his opinions. The media that matters to Roberts, the NY Times and Washington Post, would dismiss him as a Right Wing hack. In his world the academic and media Left can make life pretty uncomfortable for a gentleman scholar who wants history to treat him well.
So he employed a little Sophistry, changed a fine into a tax, and dodged the bullet. If he plays his cards right, and I think he will, he’ll be a hero of the Left for Obamacare and after leading a couple of Conservative 5-4 votes on affirmative action and voting rights he’ll be back in the good graces of the Right. As Winston Churchill said; “Nothing is so exhilarating as being shot at without result.”