There is no silver lining: Justice Roberts’ despicable Obamacare decision [Reader Post]


In March of 1937, in West Coast Hotel Co. v. Parrish erstwhile conservative Justice Owen Roberts suddenly began voting to support New Deal legislation. His change of heart was the beginning of what became known as “The switch in time that saved nine.” His sudden reversal was in direct response to FDR’s threat to pack the Court in the face of the Court’s resistance to the President’s sweeping progressive agenda. From that point forward the Constitution ceased to be a significant barrier to anything FDR wanted to do.

Fast forward 65 years and another erstwhile conservative Justice Roberts makes the same switch. For similar reasons – although President Obama has not yet called for a modern day “Court Packing”, he has frequently assailed the Court for its Citizen’s United decision, and strongly implied that the court would be guilty of judicial activism were it to overturn Obamacare, stating: “I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress.”

In the face of such attacks, Chief Justice Roberts voted to preserve the legitimacy of the court by voting to support Obamacare. To support his decision, Chief Justice Roberts chose to reached back 85 years to Blodgett v. Holden so that he can quote Justice Oliver Wendell Holmes: “the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” For it to have been so compelling for Justice Roberts to depend on it so strongly, one might expect that Justice Holmes’ edict must surely have come straight out of the Constitution, or at a minimum must have been simply “codifying” some long settled precedent reaching back to the time of the Founding Fathers. Actually, not so much. Justice Holmes was really only drawing on decisions that had been around for less than 20 years, starting with US v. Delaware & Hudson in 1909. In other words, Justice Holmes was claiming his actions were supported by settled law when in reality they were nothing of the sort.

This leads to something of a detour… The left is constantly suggesting that the country cannot possibly be governed by the words in a document that was written by a bunch of rich white guys 225 years ago. Imagine, television didn’t even exist then… The Constitution said slaves counted for only 3/5 as much as free men for taxation and representation purposes. Most people worked for themselves on farms and got their water out of wells and Virginia, the most populous state in the nation had a mere 747,000 people, 30% of whom were slaves. No way those old guys could have known anything about modern America.

The question I see in this case, however, is thus, if the 225 year old Constitution, which was ratified by each of the original 13 states, cannot be counted on to determine the limits of government power, what makes an 85 year old precedent voted on by 4 guys in 4 to 4 decision that much more compelling? Maybe because the world was so much more modern by then? Except that television still didn’t exist and most people were still living on farms, getting their water from wells and Al Gore hadn’t invented the Internet yet. Maybe precedent trumps everything… Except it doesn’t: Brown v. Board of Education overturned Plessy v. Ferguson after a mere 58 years.

At the end of the day, Charles Krauthammer’s suggestion that Justice Roberts’ decision is “one of the great constitutional finesses of all time”, the reality is that it is nothing of the sort. It is at its base judicial activism in its most despicable form. In the face of explicit and frequently and vociferously stated opinion of the President and the legislators who passed Obamacare, the law was not a tax. It passed with its advocates telling the American people stating that the power to pass it came from the Commerce Clause. Regardless, Chief Justice Roberts decided that the stated constitutional grounds upon which the law was passed were in fact unconstitutional. But in a pretzel like logic he stated that the legislation was indeed constitutional after all because Obamacare was really a tax after all.

What’s worse, while the Chief Justice had to reach back almost a century in order to find even the thinnest of grounds to find Obamacare unconstitutional, he had to compound his legislative contortion by suggesting that the mandate penalty was not a tax for the purposes of the Anti-Injunction Act – which states that a tax must be paid before it can be challenged. This was critical because none of the penalties would be due before 2014 and thus there would be no standing to sue to overturn Obamacare until then. He then immediately declared the penalty a tax for constitutionality purposes.

The Chief Justice had many options available to him in this case. He could have, as it appears he originally did, voted to declare Obamacare unconstitutional on the grounds that Congress does not have the power to compel anything like it under the Commerce Clause. He could have declared the mandate a tax and stated that there was no standing to sue until someone actually paid the tax. Each of these options would have been a straightforward constitutional approach that most citizens could have understood, even if they didn’t agree with it. Instead the Chief Justice chose to engage in the worst form of judicial activism. It wasn’t that he was supporting the legislative or executive branch when they suggest some flawed reasoning about how the Constitution gives them the power to do something. No, more disturbingly, he became an advocate for a piece of legislation and contorted its language and intent for the specific purpose of finding it Constitutional.

Those suggesting that the Chief Justice created some new Commerce Clause line in the sand across which Congress cannot venture are deluding themselves. He has just as quickly provided a roadmap for any marginally intelligent legislative aide to find a way around any such limits… “We can’t pass a law forcing them to eat broccoli or buy a planet saving electric car or limit them to one gun per household, but we can certainly tax the hell out of them for not complying.”

The first Justice Roberts’ change of heart opened up the floodgates to a tidal wave of government intervention and regulation that would not be matched until LBJ and Richard Nixon sat in the Oval Office. And we all know how that has turned out. One has to wonder what this second Justice Robert’s legacy will be… maybe it will be something like this: A judicial branch advocate for the legislative and executive branches against the Constitution and American people. That can’t turn out well. It makes me wonder if we may be finally testing Benjamin Franklin’s words about what the Constitution provided: “A republic, if you can keep it.”

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I think that if this healthcare law stays intact, it should be required for all gov’t employees from BHO down. Then they will see just how good this law really is. No waivers allowed.

@Old Guy: c

Dream on, Old Guy. That’s not ever going to happen. It would, after all, make them one of us. They are not us. They are the other.

Obama touted the Affordable Care Act, or Obamacare, as “a law that was passed by a strong majority of a democratically-elected Congress.”

Is seven votes a strong majority?

What would be a weak majority?

Would the Supreme Court review a law written by a congress that was not elected?

It seems Obama’s speech writers are barely more intelligent than “The Won.”

When conservatives don’t get the ruling they want, they call it ‘activism’; when they get what the want, they call it ‘strict constructionism’.

@Liberal1 (objectivity):

When conservatives don’t get the ruling they want, they call it ‘activism’; when they get what the want, they call it ‘strict constructionism’.

When the ruling is one that we agree with, because of our belief in the Constitution, and what it says, or it’s original intent, then it is a ruling that follows the Constitution, and as such, could be viewed as ‘strict constructionism’.

A better identifier, though, is ruling by ‘original intent’. That really isn’t all that hard to accomplish, either, Lib1, as the framers and founders all had numerous writings upon the subject, including the most famous of them, the Federalist Papers, by which to compare and contrast the cases before the court to what should be.

It’s when the judicial branch, whether it’s the USSC, or the Circuit courts, bend, or completely change, the original intent that we call it activism on the part of the justices.

In the case of Obamacare, and specifically the ‘mandate’, it was presented to ‘We, the People’, as a penalty applied through power of Congress under the Commerce clause. It was argued, by Obama himself, as the same. In every losing court case it has had thus far it was argued as the same. Justice Roberts accepted that, yet changed it from a ‘penalty’ to a tax, in order to save the law from being struck down. That is judicial activism, Lib1, no matter how you look at it.

The question should be, why didn’t Obama, and the Dem Congress, argue it as a tax from the very beginning? That they didn’t should be a very telling fact about those pols.

Honest, objective, people wouldn’t want a “win” by falsehoods and misleads. Why? Because doing it that way doesn’t “prove” that your idea is correct, or right, or the ‘Will of the people’.

You support a bunch of lying, thieving imbeciles, Lib1. What does that say about you?

@Liberal1 (objectivity):
Congratulations for stating the obvious, though I somehow doubt you meant to. Conservatives want the Constitution to stand as written; “strict constructionism”, so your statement is essentially a definition of conservatism though I think you meant it as an insult. . . it isn’t.

Although Liberal 1 is generally perceived to be a moron, even a broken watch can be correct twice a day.

Hardly anyone will disagree, the phrase judicial activism includes the actions of the Supreme Court ruling on a version of the law Congress didn’t write or rewriting a law to make it Constitutional is considered to be judicial activism.

Liberal1 (objectivity) @#4 – You obviously have no problem being conned….by your own Government.

Or perhaps you are too incompetent to make decisions for yourself. If this is the case the Government, for a rather large TAX will certainly save you from yourself. In fact it’s right around the corner. Oh, and don’t handle any sharp objects until then…


Hardly anyone will disagree, the phrase judicial activism includes the actions of the Supreme Court ruling on a version of the law Congress didn’t write or rewriting a law to make it Constitutional is considered to be judicial activism.

Except that for liberal/progressives, the court ruling on a law that goes against their belief, or ideology, is judicial activism, and if it agrees with their beliefs or ideology, then it’s good. That is the point that I believe Lib1 was trying to make against conservatives.

It’s quite amusing that as stated, Lib1’s comment is quite correct, even though his intention was most likely not.

Kagen should not even have been allowed to vote as she helped write the damn thing!

I would call that a conflict of interest!

Oh bwax, there is not a conflict of interest. Justices rely on integrity to recuse themselves when there is a conflict of interest. Consequently, a justice may lack integrity, but there is never a conflict of interest.

When Ginzberg helped the government lawyer plead his case, so that it was at least coherent, it was merely a lack of integrity that made her coach the clueless hack, not a conflict of interest.

@Liberal1 (objectivity):
I am guessing you also applauded the Dred Scott decision as another highpoint in the decisions of the court.

just look at those who are excluded from the penalty,
it again is a law to divide the AMERICA, already broken in parts scattered in different STATES,
just a matter of time,

At the risk of getting thwacked…

Yes, his decision sucked. Yes it’s a disaster.
We need to move on and figure out our next move.

HR, the moves are obvious, but intimidating; we must win the senate, the executive, and make sure our RINOs don’t sell us down river. The last one may be the most difficult of all. Our leaders are willing to talk big to get elected, but they often come up short, when it comes to standing firm.

If you have another plan, we better listen.

which judge from the fifth circuit, demanded a paper to described, which I forgot about, was it about that healthcare in the hands of the HIGHEST COURT? WHICH HE ASK OBAMA OR ERIC HOLDER TO WITH A SPECIFIED DEMAND WITH A 3 DAYS TERM TO HAVE IT IN HIS HANDS? THAT WAS BEFORE AT THE START OF THE ISSUE, WHEN OBAMA SAID SOMETHING TO THE HIGHEST COURT JUDGES. to warn them,

In the face of such attacks, Chief Justice Roberts voted to preserve the legitimacy of the court by voting to support Obamacare.

Funny if it turns out Roberts simply found Obamacare to be constitutional.

funny that he got worse than he was expecting.

I am 74 years old and I truly miss the country in which I grew up. I grew up in the United States of America. It was populated by Americans and people who desired to become Americans and was founded on a Constitution based on Christian principles. That seemed to work out pretty well untill we forgot who we were and why we had it so good. We’ve turned our back all that set us apart. We are now just another part of the world with no particular identity of our own. Very sad and very scary.


That’s the plan. The backup is start a new party if the GOP chokes. If that fails….food, water, bullets, etc. (survival mode, not revolution).

Old Bill
yes, what a change of people around the AMERICAN ROOTED.

Hard Right
yes, they better do their thing right, because the PATRIOTS WILL.


Of that you can rest assured.

What most people here haven’t done, was actually read the decision that Roberts wrote- it is masterful in both re-directing the message, and forcing Obama’s hand.
He (Roberts) has forced the Left to admit it is a tax, he negated further use of the Commerce Clause to ram through other legislation, and he (most importantly), told the American public that the Supreme Court should not be protecting the American public from its political choices- in other words, if you want a good government, vote one in- if not, don’t bitch about the assholes we elected.
After all, it is not that Obama did not tell us right to our faces that he would “Fundamentally Change America”. He WAS true to his word there. We, the American Public, just did not ask how. Our bad.