Chief Justice Roberts and his conservative defenders: too clever by half

By Phil Lawler ( bio - articles - email ) | Jul 05, 2012

In the week that has passed since the stunning Supreme Court decision on Obamacare was released, many of my conservative colleagues have tried to explain the opinion by Chief Justice Roberts as a hidden gem: a stealth victory for the cause of limited government. Those explanations—like the Roberts ruling itself—are too clever by half.

Yes, it’s true that Roberts, along with the four dissenters, ruled that the Commerce Clause cannot be used to justify an indefinite expansion of the federal government’s police power. Some conservative pundits saw this as the saving grace of the Roberts opinion. “But here, I’m afraid, some of our friends have been telling themselves fairy tales,” the constitutional scholar Hadley Arkes lamented.

If Roberts had joined those four dissenters, they would no longer have been dissenting; they would have constituted a majority, with the power to deliver a sweeping victory for the cause of limited government. If only the Chief Justice had held firm, the votes were there. The Court could have reined in the use of the Commerce Clause and struck down the Obamacare mandate.

Was the Chief Justice trying to preserve the Supreme Court from partisan criticism? Maybe so. But his job is not to prevent criticism of the Court; his job is to prevent violation of the Constitution. Or maybe Roberts was trying to safeguard the integrity of the Court by showing that the Justices would not interfere in a highly contentious political debate. But as William McGurn has argued, the decision to avoid entanglement in the Obamacare debate was itself a political judgment, and politicized judgments undermine the integrity of the Court.

Other commentators suggested that Roberts has actually made it easier for Republicans to repeal the Obamacare legislation, by characterizing the mandate as an onerous tax. Yet that too implies a political judgment, of the sort a Supreme Court Justice should not attempt to make. The task of the Court is to interpret the Constitution, and leave the politicians to fight out their own battles.  

In this case, the stage was set for a landmark Supreme Court ruling, reversing a long trend toward intrusive government. The legislation was unpopular; the Constitutional issues seemed clear; the administration’s arguments were so weak that President Obama all but predicted a defeat in the Supreme Court. And then, when everything seemed so simple, Chief Justice Roberts decided to be clever.

Back in the days when I was a competitive tennis player, I learned something about being too clever. There are times, in a tennis match, when the opponent barely gets the ball over the net, and leaves you with an easy shot: a “sitter.” If you feel confident you smash a sitter, bouncing it over the fence, easily winning the point. But if you lack confidence, you try something cute. You chip the ball, or feint in one direction and then hit it the other way. You probably still win the point—it is, after all, a sitter—but your opponent gains a psychological edge. He realizes that you don’t have the confidence to play the power game.

Government is a power game. And the Obamacare mandate was a sitter. The only proper play was to overturn the entire bill, as four Justices were prepared to do (and Roberts was apparently ready to do as well, until he had second thoughts). But Supreme Court law is not at all tennis in another respect. In tennis, if you flub a sitter, you lose only one point, and you can recoup on the next serve. In Supreme Court jurisprudence, years may pass before the Justices have an opportunity to undo the damage caused by the Roberts opinion.

Why do conservative jurists so often miss their best opportunities to curb government power? And when they do, why are conservative pundits so anxious to explain away their failures? Liberals do not make those mistakes. In the Roe v. Wade decision the facts of the case were uncertain and the legal reasoning was flimsy, but the votes were there, and a liberal majority on the Supreme Court seized the opportunity, disregarding the political fallout.

If the Roberts court had overturned the Obamacare mandate, would there have been howls of protest? Sure! Angry political rhetoric? Certainly. Aspersions cast on the integrity of the court? No doubt. But the legislation would still have been nullified, and the Constitution would still be intact. It might have been a messy victory for the cause of limited government, but it would have been a victory.

If liberals take every chance to snatch a victory, while conservatives can be satisfied with respectable compromises, then all the momentum of the American political system is leftward. As David Horowitz has observed, if one army is shooting blanks, and the other using live ammunition, the outcome of the battle is easy to predict.