Krauthammer: Chief Justice Roberts “goes to China” (Why did he do it? Here’s why.) – POLL

Chief Justice John Roberts

[Lively discussion about the SCOTUS decision is HERE.]

There is alot of speculation about what Chief Justice Roberts did and why in his majority opinion effectively upholding the Patient Protection and Affordable Care Act by coming at it as a tax rather than tackling it under the Commerce Clause.  I am sure we are now all referring to Obamacare also as ObamaTAX.

And the HHS attack on religious freedom still stands.

In National Federation of Independent Business v. Sebelius Roberts wrote (biretta tip to The Motley Monk for the quote):

“Members of this Court are vested with the authority to interpret the law; we 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.”

Charles Krauthammer opines in the Washington Post about the what and the why.  Without pyschic powers or Robert’s coming clean, this might be as close as we get to answers, and he speaks his piece in about 750 words (amazing).  Mind you, I am not by this saying one way or another that Roberts what right to do what he did.  Some who are both reading- and analysis-challenged will claim that.  For me, Krauthammer’s explanation is the most plausible I have found. Here it is with some (regretted) cuts:

Why Roberts Did It
He’s the custodian of the Court’s reputation. [There it is.]
By Charles Krauthammer

It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and [NB] thus prevented the Court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the Court’s legitimacy, reputation, and stature. [I think what we are seeing here is an application of an interpretive principle which I often use in looking at things that happen in and to the Church: ad intra and ad extra.]

[…]  [I hate cutting any of this, it is so well-written.]

Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5–4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.


How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan Court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.
Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.
That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory, and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice, and not the chief. But that’s how he did rule.
Obamacare [ObamaTax] is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.

It seems plausible.

What I worry about, however, is that there is now a dangerous, eroding constitutional precedent.


Please vote and give an explanation in the combox.  And please stick to this topic.

Is Krauthammer right about why Roberts did this?

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About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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  1. irishgirl says:

    I like the way Charles Krauthammer writes (one reason I used to get the NY Daily News, where his column appears).
    Excellent piece-says it all!

  2. Burke says:

    Folks, the world is watching on this one and scratching it’s head: a healthcare law was upheld by the US Supreme Court as (drum roll please) a tax. That is some trick.

    Still, it’s only round one!

  3. beccab77 says:

    An “above my paygrade” dodge?

  4. Mrs. O says:

    There are certain things we need in order to pass, a supermajority. This whole Obamatax was not launched as a tax to begin with although the GOP firmly held it was a tax. IF it is now seen as an official tax, should it have a re-vote to see if it gets a supermajority or at least let the Congress say we need a supermajority?

  5. wmeyer says:

    That’s undoubtedly what Roberts is saying: Your job, not mine.

    Do I hear Nero fiddling? The Court has not backed away from overstepping its role in other matters–now suddenly he’s drawing the line in the sand?

  6. Peggy R says:

    It may very well be true, but is that true justice, to betray the constitution and subject the people to this tyranny (compulsion to buy insurance or be ‘taxed’) for reputation? He rewrote the law from the bench. I’ve never seen it done so obviously before.

    [Insurance is just 1 way of paying for medical care. What should the govt care if people pay their bills? It’s the govt that doesn’t pay its bills for medicare/medicaid eligible people. Ask any hospital administrator in Illinois how far behind the state is. Do you think the hospitals are really going to find this more profitable?]

  7. Facta Non Verba says:

    Even though I disagree with the result, I found Chief Justice Robert’s opinion to be well-reasoned, logical. The good news is that we are not necessarily stuck with the result. The country can change the result by voting for change this fall. If change is not voted in this fall in the presidency and the US senate, then I will have reason to mourn for this country’s future.

  8. So Roberts avoided the perception that the Court is political by deciding the issue with political motives, namely to avoid the perception that the court is political.

  9. chcrix says:

    The court simply doesn’t want to admit that for 100 years or more outrages against the constitution have been sanctioned by the court.

    Is Obamacare unconstitutional? Of course. But so is about 95% of what the Federal government presumes to do. All of this under the shabby cover of the “general welfare” or “commerce” clauses.

    Even the so called conservatives on the court don’t want to actually look a century of rulings in the eye and say “oops” to the country.

    As long as the Federal government defines its own powers, its actions will usually be found constitutional and over time those powers grow.

    Until of course the overreaching ambitions (foreign and domestic) of our political class in DC finally breaks the economic back of the country and there is a melt down like that experienced by the late, unlamented Soviet Union.

  10. Johnno says:

    So the court was trying to appease both sides rather than do a consistent job like a politician…

    And Pontius Pilate washed his hands before Israel saying, “I am innocent of this man’s blood, you take him yourselves and you crucify Him.”

  11. Theodore says:

    Of the four boxes which guard our liberty the jury box has been closed on this matter. Let’s continue to use the soap box to raise support for our participation at the ballot box and pray that we do not have to resort to the final box.

  12. ALL: We have another entry for general discussion. HERE. I suggest that in this thread you stick to the topic of the entry and discuss the point Krauthammer is making.

    Is Krauthammer right?

  13. Sam Schmitt says:

    Krauthammer’s does seem the most reasonable interpretation of why Justice Roberts did what he did, and similar arguments are making the rounds among conservative commentators. Seems they’re trying to spin this into some sort of “victory” for conservatives, that somehow this is good in the long run though it seems bad in the short run (“Obama won the battle, but Roberts won the war” etc.).

    It’s just that Roberts’s the-penalty-is-really-a-tax “argument” is so laughably lame on so many levels (“flimsy” is a charitable understatement). Evidently he chief justice risked the court – or himself at least – looking intellectually braindead to save that was left of its political capital.

  14. Sissy says:

    I believe Krauthammer is right about CJRoberts’ motives, and I think CJRoberts’ motives were wrongheaded. I think he did it for reasons of related to the prestige of the Court and his own “legacy”. Because he feared what the MSM media and the cocktail circuit in Georgetown would have to say about a conservative 5-4 decision, he took the path of least resistance. Apparently, it’s ok to have a liberal 5-4 decision; that isn’t partisan or political. There is some evidence he was pressured into changing his vote at the last minute. At any rate, he was weak and vain. And by basing his decision on such unworthy criteria, he guaranteed an outcome that is the direct opposite of what he tried to manipulate. He has damaged the Court’s prestige and ensured for himself a legacy that will not be to his liking.

  15. Sissy says:

    Incidentally, CJ Roberts’ job is precisely to overturn bad (unconstitutional) consequences of lawful elections. That’s his only job.

  16. dcs says:

    I voted that Krauthammer is wrong (as he is on so many issues). Here is why. I keep hearing that Chief Justice Roberts is a “constitutional conservative” or that he is a strict constructionist, but I’ve not seen any evidence that he in fact is. I offer the following for consideration (note that this is from 2005):

    We had quoted Roberts when he came before the Senate Judiciary Committee for his appointment to the Court of Appeals on April 30, 2003. Roberts said: “Roe vs. Wade is the settled law of the land…. There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent….” Sen. Arlen Specter asked Roberts at the Judiciary Committee hearings for his appointment for Chief Justice (Sept. 13, 2005): “Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?” Roberts answered: “Well, beyond that.” That means that Roe is settled law, not just for Roberts himself, not just for Roberts as a circuit judge, but is settled for him as a Supreme Court justice.

  17. Phil_NL says:

    Whether or not Krauthammer is right in guessing the reasons for the CJ’s decision we’ll probably never know, unless Roberts will write memoirs some day. *

    That said, the real question is, assuming that Krauthammer has to motivation right, if it would be a good reason to do so. On that front I’m with Fr. Z.: while it may have saved the court from a decade long feud with the left, the damage in other areas is severe, and ultimately greater.
    The reason for this is that the entire concept of enumerated powers can now be attacked through a different route: anything that doesn’t pass muster under the commerce clause (which is far less than should be stopped under it, thanks to New Deal area silliness) can now be disguised as a tax. And any choice can be tax, just as not making a choice, that is clear from this ruling.
    So expect all ‘socially desirable’ behavior changes the government wants to force upon you to come in the form of taxes from now on. Rather than using the power of taxation to raise necessary revenue, the power of taxation will be used to guide, nay force, your actions. As there’s no limit to what you can tax under this regime (if you can tax any action by imposing a fixed amount of veryone and then give ‘discounts’ based on choice people make, you can recreate any tax, from income taxes to VATs to environmental taxes simply by imposing the right conditions for the waiving of the tax).

    So in all, the court may have won, but the US has lost, as there’s no significant limit on the power of the federal government anymore. In practical terms the commerce clause jurisprudence already removed many of these barriers, but there was something left. Ironically, the CJ labored hard to save these restrictions, but in doing so approved a wholly new line of thought that can be used to make any federa decision constitutional, as long as it is phrased right. Hence my conclusion that the era of enumerated powers is now definitively over.
    To fix it, the US will need a constitutional amendment. How that should be worded is something that requires serious study, but an essential element would be that taxes cannot be made conditional on behavior (ideally, though that would also mean a flat tax rate) or at least only conditional on the amount of income or goods that has been taxed. The waivers rewarding certain behavior have to go. Alternatively, the US could repeal the 16th amendment and force the states to provide all revenue, but that’s probably even more unworkable than it was a century ago, and would bump the problem down to State level, which is better but far from ideal. Either way, it will be a Herculean job.

    *Which I hope he won’t, as it would imply him retiring, and despite this decision, it’s hard to see how theu US would get a CJ that’s significantly better. Romeny’s nominees would be in the same mold at best, and even Reagan and GWB had nominations that backfired.

  18. Sissy says:

    Now that it’s been ruled a tax, and the anti-injunction act doesn’t apply, does that mean that suits can be filed by taxpayers on equal protection grounds?

  19. Gus Barbarigo says:

    Dr. K is a gifted writer and speaker, to be sure. But by his logic, and perhaps Roberts’, if November is meant to be a referendum on Obamatax, it could just as easily have been a confirmation of a 5-4 ruling *against* Obamacare. (Maybe Roberts was trying to avoid just such a referendum.)

    But Omabacare/Obamatax is a matter of freedom v. persecution, and of life and death, such as abortion (infanticide) and “euthanasia” (senecide?). Roberts is at best a Pontius Pilate, and at worst a stealth statist, as Ann Coulter had warned.

    The Left never misses a chance to further its evil agenda. We must be just as zealous to act in Christ! If our “team players” won’t stick to the playbook, then let’s get better players!

  20. PA mom says:

    I found more convincing the discussion of the states’ rights. The way the opinion seems to clearly protect states from certain flows of federal money impelling them to perform acts unrelated to that direct flow of funding. Like how HHS has cut off all of Texas’ ‘family planning’ money and threatened more just because it won’t pay Planned Parenthood. It would be wonderful if this would motivate states to look closely at these carrots that the federal gov’t has been shoving down their throats (unemployment extensions, Medicare expansions, No Child Left Behind) and deliberately chose between what is good for the people of that state, and what is just federal overreach. Start nipping away at the entitlement society at all levels of government.

  21. Laura98 says:

    I read the original (whole) article yesterday … but didn’t understand it. Could be because I only had about 3 hours of sleep. I’m still in a kind of a cloud with all of this, because I don’t get how this is a “tax” when I’m having to buy the dang insurance.. but I digress. Everyone seems to be trying to figure out what Chief Justice Roberts “true” aims really were. Does anyone really know? My only thought was that he wasn’t doing his job of interpreting laws according to the US Constitution … but then he flubbed up the swearing in of President Obama. Personally, I haven’t had much confidence in him since then.

  22. Chris Garton-Zavesky says:

    In 1857, the sitting Chief Justice, Roger Taney, issued a decision which everyone loves to hate. He argued (as, if I understand Krauthammer, Roberts did) that the continued existence of slavery was not a good thing, but not the Supreme Court’s job to solve: he refused yet another compromise. I haven’t read the opinion of Chief Justice Roberts, but it seems that when the tax is, in fact, punitive and designed to compel, the case can again be raised.

    It seems plausible that, in re-instating the commerce clause as the commerce clause and not as the modus vagandi of the unleashed federal arm, Roberts has set up grounds for other kinds of restraint of government.

    Not long ago, my wife and I watched Judgment at Nuremburg. What will historians say in a few years about our institutions and the protecting of the people from the overreach of tyrannical aparatchiks?

  23. tioedong says:

    Roberts wasn’t judging the health care bill: the issue was if the government could order you to buy health insurance, not what was actually in the law.

    The answer is no, but they can tax you if you don’t.

    Roberts was very sarcastic about the courts not overturning decisions that were dumb but legal.
    Given the state of the country, overturning the health care bill would have led to a virtual civil war.

    and check out this article at get religion blog:

    Justice Ruth Ginsberg, (sic) said “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.”

  24. Indulgentiam says:

    I voted, yes he is right. While i do not understand all the legal and political intricacies i do believe this may have been, given the political and cultural climate the best resolution. I could be wrong, goodness knows i am several times a day. However, striking it down as a mandate and calling it a Tax has effectively called obama, his administration and all his supporters liars. He can not campaign on it though i am willing to bet his spin doctors are working furiously as we speak. I can’t wait to see the spin they put on this. I think that had they struck it down completely, given the social unrest e.g occupy movement morons, it could have caused civil unrest. and as anyone who has read communist history will tell you civil unrest is their excuse to institute martial law.

  25. Supertradmum says:

    Father Z, I missed this excellent article. Thanks for posting it. I have other commentators on my blog from Washington watcher sources which claim that Roberts and Krauthammer’s take on this are correct. I think it is up to the voters, and that is what Roberts is counting on. Very interesting, but dangerous.

  26. poorlady says:

    Krauthammer is absolutely right. His point that struck me was the way Justice Roberts waives his responsibility to correctly interpret the laws of our land. The mandate is a “hot potato”, and he doesn’t want to deal with it. He has the ability to say “yea” or “no”, and he chooses to leave it up to us…after spinning it into a “tax”.

    Absolute corruption.

  27. LisaP. says:

    Seductive, but no.
    Here’s the problem I have with the reasoning of Krauthammer and maybe Roberts. It conflates reality with perception.
    When Krauthammer brings the Gore/Bush decision in, that’s what pegs it for me. I’ve never understood with that one, they could only rule one way or another. They couldn’t give a no opinion, right? So if they picked Bush, folks were going to say it was political. If they picked Gore, would it have looked less like it was political? Especially since the case for Gore was weaker than the case for Bush?
    So Mr. Krauthammer is basically speculating that Roberts felt the court was being perceived as a sham, and he didn’t want it to look any more like a sham, because that would be bad for the U.S.
    We don’t address whether the court is a sham or not, just whether it’s perceived as one. If it is a sham, it’s up to Roberts to correct that, not just make things look good. If it isn’t a sham, it’s up to Roberts to combat the perception, but not by making the perception more accurate.

    As a previous commenter said, it is *precisely* the job of the Supreme Court to protect people from their political choices, when those choices lead to infringement on the Constitution. That’s exactly what the job description is. There is no other job, and there is no one else tasked with doing that job. Any twelve year old with a few reading comprehension skills (or a dictionary) could easily see that this mandate was unConstitutional, and as a tax it is even more unConstitutional. It was Roberts’ job to overturn it precisely because it was unConstitutional. I don’t care why he decided not to do his job, he didn’t do his job.

  28. PA mom says:

    What if Roberts caved to his Bishop? He has been described as a faithful Catholic. The Bishops keep emphasizing that they have been trying to do this for almost a century. Did someone in the episcopacy apply pressure to let it stand, then legislatively work the bugs out? All of the angles I have read on this, no one suggests this very obvious possibility.

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