LOS ANGELES, July 5, 2012 — Several days have passed since Supreme Court Chief Justice John Roberts shocked the political establishment by joining the liberals on the court to uphold the Affordable Care Act. His vote gave Obamacare a 5-4 lifeline. Roberts’ opinion struck down the individual mandate under the Commerce Clause but upheld it as a tax.
While liberals were prepared to demonize the “racist” Supreme Court, conservatives have been for the most part muted and respectful at what seems like a tragic betrayal.
New York Times columnist Tom Friedman praised Roberts, which is about as helpful as Walter Mondale praising President George Herbert Walker Bush for breaking his “read my lips” pledge and raising taxes.
Liberals praise conservatives for “growing” and “evolving” when they move leftward. In other words, liberals are happy when conservatives finally shut up, sacrifice their own principles, and agree with the left. Liberals who move rightward on any issue, as Senator Joseph Lieberman did, get the verbal equivalent of a tarring and feathering.
Yet if Roberts is being praised for restraint, movement conservatives are applying for sainthood in that department. Most conservative intellectuals are criticizing the decision while not personally savaging Roberts. My own reaction falls along these lines. I wanted the entire law struck down as unconstitutional, but will not attack Roberts. A conservative friend of mine said to me, “You know, you are allowed to disagree with him.”
Yet my reluctance stems from my initial and continued reaction to the Chief Justice.
In 2005, I hailed his appointment as a “home run out of the ballpark.” He was “an intellectual titan,” “one of the finest legal minds on Earth,” and “the judicial equivalent of General David Petraeus.” His intellect and ability for analysis was exceptional, “approaching Charles Krauthammer levels.” He was “the top of the top.” Whenever conservatives criticized President George W. Bush, I would look at them and say “Two words: John Roberts.” That ended the conversation.
So in 2012, despite being dismayed by the Obamacare decision, my opinion of the chief justice has not changed.
Roberts has been a conservative justice. He has shaped the court into a reliably conservative court except when Justice Kennedy wanders off the reservation.
If the left is to be justifiably criticized for putting ideological purity of above sound judicial (and legislative and executive for that matter) reasoning, then it is proper for the right to give Roberts a mulligan.
Dr. Charles Krauthammer, while insisting he disagreed with the ruling, still called it one of the all time brilliant legal finesses. Krauthammer pointed out that in addition to respecting the Constitution, Roberts also has to respect the Institution. Justices Thomas and Scalia are strict constructionists who base all of their decisions on the original intent of the founders. Justice Alito appears to do likewise.
Justice Ginsburg simply makes stuff up out of thin air. She wants to consider foreign law in rendering decisions. She is the epitome of an activist judge. Justices Sotomayor and Kagan seem no brighter. To put Justice Roberts in this category is unfair. He has rendered good decisions for seven years. Most schools would give an A+ to a student with a 99% test score and a 3.99 GPA.
Roberts is not David Souter, who moved leftward. Roberts over the next decade will most likely move the court to the right. Liberals praising him today will turn on him, and Friedman will go back to demonizing him. Decisions next year on affirmative action and other hot button issues will be very telling. Roberts has thrown liberals a bone and inoculated himself against charges of bias.
Additionally, if Mitt Romney is elected President and the Republicans capture the Senate and retain the House, Obamacare will be repealed. Therefore, the law is never implemented. This falls under the “no harm, no foul” argument. If Republicans fail to win the 2012 election, we conservatives only have ourselves to blame for that.
Some will argue that while the Commerce Clause was restricted, Congress and the White House now have vast new taxing powers that they will inevitably abuse. The counter-argument to this line of thought is “not so fast.”
Politicians are gutless. Above all else, they fear being fired. President Obama and every liberal in a competitive race is insisting that Obamacare is still not a tax. That is why they did backflips to avoid calling it a tax to begin with. They lied to the American people, but that is not the job of the High Court to determine. That is what elections are for. Either way, advocating any legislation as a tax increase is a tough sell. Future abuse through taxing powers is much tougher from a political standpoint than by abusing the notion of commerce.
So yes, good conservatives can disagree with Roberts and still consider him a genius.
By the time his tenure is over, the Obamacare decision may be a barely noticeable blip on an otherwise sterling conservative judicial record.
John Roberts got virtually everything right up to this point. One decision, no matter how big and how wrong, should not change that. He deserves the benefit of the doubt going forward.
Brooklyn born, Long Island raised, and now living in Los Angeles, Eric Golub is a politically conservative columnist, blogger, author, public speaker, satirist and comedian.
Eric is the author of the book trilogy “Ideological Bigotry, “Ideological Violence,” and “Ideological Idiocy.” Eric is 100% alcohol, tobacco, drug, and liberalism free. After years of dating liberals, he has finally seen the light and now only dates Republican Jewish women. His family is pleased over this. Republican, Jewish women, you may contact Eric above.
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Eric Golub is an independent writer for the Communities. Read more from Eric at his TYGRRRR EXPRESS blog.
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