The headline on my column gives the wrong impression. I’m no fan of the decision and I think the people celebrating Roberts’s genius are missing the point (more on that in today’s forthcoming G-File). From today’s column:
Of course, there are substantive arguments in favor of Roberts’s reasoning. But as far as I can tell, no one is confident, never mind certain, that Roberts actually believes his own position. And among supporters of Obamacare, from the White House on down, no one cares whether he does.
President Obama — self-praised constitutional scholar — mocked those who called the fees and penalties under Obamacare a tax. Now he celebrates a decision that mocks him back. Democratic National Committee executive director (and former White House aide) Patrick Gaspard seemed to summarize the depth of concern on his side of the aisle when he responded to the ruling on Twitter: “it’s constitutional. B—-es.”
More sober-eyed liberal legal experts took similar positions. Roberts’s opinion was “statesmanlike,” they claimed, and, more bizarrely, “apolitical.” Some, such as constitutional scholar Jeffrey Rosen, speaking on National Public Radio, even celebrated Roberts’s brilliance at finding a way to save the reputation of the court by deploying what Thomas Jefferson called “twistifications.”
Indeed, before and after the ruling, much of the journalistic and legal establishment argued that a 5–4 ruling to overturn Obamacare would be “political” because the majority would be comprised entirely of Republican appointees. But a 5–4 ruling to uphold Obamacare would be apolitical because, well, it just would be.
In other words, if five conservative justices rule according to their well-known convictions, it’s illegitimate. But if Roberts twists himself like an illustration in the Kama Sutra to find a way to uphold the law, then that amounts to “leadership.”