suntimes
LUMINOUS 
Weather Updates

Maybe John Roberts’ legal gymnastics did the country a favor

Updated: August 2, 2012 10:24AM



When all is said and done, perhaps Chief Justice John Roberts of the U.S. Supreme Court did the nation a favor by giving notice to Americans of all political persuasions that the hard decisions about the country’s future lie in their hands, not in the rulings of nine unelected judges.

That may be a hard pill to swallow for the many conservatives expressing disappointment and worse for Roberts joining the court’s four liberals in saving President Barack Obama’s Affordable Care Act from its deep constitutional failings.

Don’t get me wrong, I too have a hard time fathoming a court decision that essentially rewrote a law to make it constitutional by renaming the financial, er, penalty for not buying health insurance under the individual mandate to be a tax instead of a penalty.

So startling was his opinion that it has some conservatives wondering whether Roberts has drifted from their ranks to recast the philosophical balance of the court — from four reliable liberals and four reliable conservatives with Anthony Kennedy the swing vote to an alignment of four liberals, three conservatives and two swing justices.

Another line of speculation is that Roberts acted to avoid the court being labeled politically partisan by a lineup of the usual suspects in a 5-4 vote to overturn ObamaCare. A subset of this line of thinking is that Roberts has cleared the way for him to return to the ranks of the right in tough cases down the road, such as on affirmative action.

I think it’s wrong to impugn the motives of Roberts, or any justice for that matter. I take it as a given that they are honest individuals who reflect the current deep divisions in the country over the role of government and all of them act out of conviction, not from partisan political motives. Roberts never made a secret of his belief that the court must grant the widest latitude to the acts of Congress and search for a plausible interpretation to let them pass constitutional muster. That allows for a lot of gray area, and Roberts threaded a very fine needle in rescuing ObamaCare, as evidenced by the vigorous and very credible criticisms of his opinion from the four dissenting justices.

Still, conservatives and independents troubled by the government’s new entitlement program were wrong to expect the court to do the heavy lifting for them. As Roberts put it, “It is not our job to protect the people from the consequences of their political choices.” But Obama is just as wrong to say that the country shouldn’t “re-litigate” the health-care law. It was never properly litigated in the first place — ObamaCare was dealt from a stacked deck. Overwhelming Democratic majorities in the House and Senate steamrolled over Republicans, brushing aside their objections and ideas to pass it on strictly partisan votes.

Anger over ObamaCare and the way it was shoved down America’s throat inspired the Tea Party movement and cost Democrats dearly in the 2010 elections, their majority lost in the House and reduced in the Senate.

It will be left to history to judge the legalistic gymnastics Roberts performed to save ObamaCare. For better or worse, he has put the great questions about the limits of government and about the future America should chart — staying the course of individual freedom and responsibility or pursuing the European welfare state model — in the hands of voters. As it should be.



© 2014 Sun-Times Media, LLC. All rights reserved. This material may not be copied or distributed without permission. For more information about reprints and permissions, visit www.suntimesreprints.com. To order a reprint of this article, click here.