by
Patrick
J. Buchanan

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For John Roberts,
it is Palm Sunday.

Out of relief
and gratitude for his having saved Obamacare, he is being compared
to John Marshall and Oliver Wendell Holmes.

Liberal commentators
are burbling that his act of statesmanship has shown us the way
to the sunny uplands of a new consensus.

If only Republicans
will follow Roberts’ bold and brave example, and agree to new revenues,
the dark days of partisan acrimony and tea party intransigence could
be behind us.

Yet imagine
if Justice Stephen Breyer had crossed over from the liberal bench
to join Antonin Scalia, Sam Alito, Clarence Thomas and Anthony Kennedy
in striking down Obamacare. Those hailing John Roberts for his independence
would be giving Breyer a public caning for desertion of principle.

Why did Roberts
do it? Why did this respected conservative uphold what still seems
to be a dictatorial seizure of power – to order every citizen to
buy health insurance or be punished and fined?

Congress can
do this, wrote Roberts, because even if President Obama and his
solicitor general insist the fine is not a tax, we can call it a
tax:

“If a statute
has two possible meanings, one of which violates the Constitution,
courts should adopt the meaning that does not do so. … If the
mandate is in effect just a tax hike on certain taxpayers who do
not have health insurance, it may be within Congress’s constitutional
power to tax.”

Roberts is
saying that if Congress, to stimulate the economy, orders every
middle-class American to buy a new car or face a $5,000 fine, such
a mandate is within its power.

Now, Congress
can indeed offer tax credits for buying a new car. But if a man
would prefer to bank his money and not buy a new car, can Congress
order him to buy one – and fine him if he refuses?

Roberts has
just said that Congress has that power.

Clearly, the
chief justice was searching for a way not to declare the individual
mandate unconstitutional. But to do so, he had to go through the
tortured reasoning of redefining as a tax what its author and its
chief advocates have repeatedly insisted is not a tax.

Why did he
do it? One reason Roberts gives is his innate conservatism.

As he wrote
in his opinion: “We (the Court) possess neither the expertise nor
the prerogative to make policy judgments. Those decisions are entrusted
to our nation’s elected leaders, who can be thrown out of office
if the people disagree with them. It is not our job to protect the
people from the consequences of their political choices.”

This is a sentiment
many of us seek in a jurist in a republic: a disposition to defer
to the elected branches to set policy and make law. But Roberts
here raises a grave question – about himself.

While it is
not the job of the Supreme Court “to protect the people from the
consequences of their political choices,” it is the job of the Supreme
Court to pass on the constitutionality of laws.

Did Roberts
look at that individual mandate and conclude that it passed the
constitutionality test? Or did he first decide that he did not want
to be the chief justice responsible for destroying the altarpiece
of the Obama presidency and sinking that presidency – and then go
searching for a rationale to do what he had already decided to do?

Here we enter
the area of surmise.

In the view
of this writer, Roberts desperately does not want to seen by history
as merely a competent but colorless member of the conservative bloc
on the Supreme Court, another reliable vote in the Scalia camp.
He does not want Anthony Kennedy, the swing justice, to be making
history, while he is seen as a predictable conservative vote.

John Roberts
aspires to be a man of history, to have this court known to historians
as “the Roberts Court.” And if there is to be a decisive vote in
future great decisions, he wants that vote to be his.

He wants to
be seen among the cognitive elite, in this capital city that voted
93-7 for Obama, as a large and independent thinker. And with this
decision on Obamacare, for which he will be remembered, he has taken
a great leap forward to establishing that new identity.

John
Roberts likely has ahead of him a quarter of a century as chief
justice. If he wants to be written of as another John Marshall or
Oliver Wendell Holmes, and not Roger Taney, he must pay the price
the city demands. If he does not wish to be remembered as a tea
party justice, he must deliver the goods. And John Roberts just
did.

Already they
are saying of him that John Roberts has grown.

Liberals will
never again see him in the same light. Nor will his old comrades.
To attain the first, John Roberts is willing to accept the second.
He has made his decision. John Roberts is moving on up.

July
3, 2012

Patrick
J. Buchanan [send
him mail] is co-founder and editor of The
American Conservative. He is also the author of seven books,
including Where
the Right Went Wrong, and Churchill,
Hitler, and the Unnecessary War. His latest book is Suicide
of a Superpower: Will America Survive to 2025? See his
website.

Copyright
© 2012 Creators Syndicate

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