The Spectacle Blog

Awful Suspicion

By on 6.28.12 | 4:04PM

This probably isn't fair, because it assumes bad motives, but.... today's ObamaCare decision has all the indices of a poltiically arranged compromise rather than of a principled decision on the merits. Put yourself in John Roberts' shoes: You are an institutionalist. You know that a 5-4 decision will invite Obama to make the court THE issue of the campaign and erode the court's very legitimacy in the eyes of all Obama supporters. You desperately want to avoid that outcome, and also to maintain the good opinion of, well, elite opinion-makers.

So you try to find a way to square the circle. You want to insist that there are limits on federal powers, especially under the Commerce Clause. But you don't want to give Obama a campaign issue. And you absolutely don't want a 5-4, conservative/liberal "split" in the result.

SO..... you change your mind about the tax issue. You basically offer Kagan and Breyer a deal: If they will join the conservatives in ruling the Medicaid expansion to be an unconstitutional coercion of the states (thus getting liberal buy-in on SOMETHING, a very important consideration), but NOT invalidating the entire Medicaid part of the law (in other words, allowing severability of the new Medicaid mandates from the old, so as not to invalidate the entire new scheme for Medicaid), THEN you will, like Justice (Owen) Roberts in the 1930s, do another infamous "switch" and decide to uphold the law under the taxing power -- thus leaving it in place, preserving the court as an apparently apolitical body, and putting the political onus on Obama and the Dems for having inflicted a massive "tax" upon the public.

And really, if you read the part of Roberts' decision on the taxing power, it reads terribly -- as if he is REALLY REALLY straining to justify the unjustifiable. He even cites, not as mere dicta but as important authority, an old aphorism not invented by, but just repeated by, Ben Franklin, and not in debates on the Constitution but in a private letter, to the effect that nothing is certain but death and taxes. How pitiful! This is what is supposed to pass as having precedential value?!?! Nuts to that!

We won't know for decades (until some memoirs come out) whether or not it is true that Roberts switched his original vote on this. But this really looks like a jury-rigged, poorly reasoned, "Let's Make a Deal" kind of decision. Carol Merrill is at door number three with the prize.

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