June 28 2012
In his statement from the bench today, Justice Kennedy said that in the view of the dissent: “the entire Act before us is invalid in its entirety.”
So what happened? Why did Chief Justice Roberts side with the left-leaning judges? My guess is that Roberts was afraid of the blow-back that the Supreme Court may receive for invalidating the whole thing. It appears that he chose popularity over principle. That’s not his role – he is a steward of the Constitution, not a candidate for class president.
My initial reaction: this decision hinged on Roberts’ desire to be seen as a uniter, not a divider, on the Court. This is a violation of his oath to read the Constitution and to faithfully interpret those laws within the paradigm of the Constitution, and a failure to call balls and strikes as an impartial umpire – his own words during his confirmation hearings.
The Chief Justice may think he's thrown limited government proponents a bone by limiting the Commerce Clause, but by embracing the notion that the Affordable Care Act’s mandate is a tax – an argument roundly defeated in the lower courts – Chief Justice Roberts has set the groundwork for the next avenue of an expansive federal government at the expense of individual liberty.
The decision also shows that Chief Justice Roberts proved susceptible to progressives' preemptive attacks on the Supreme Court, threatening to delegitimize the Court in the public eye if the Affordable Care Act were overturned.
What does this mean? Advocates of big government will now argue that the Congress can compel nearly anything of its citizens (read: subjects) under the rationale that if you don't do it, we can tax you.
This is an unexpected – and deeply disappointing – embrace of an obscure and unfounded argument in support of the Affordable Care Act.