Goldberg: John Roberts' judicial 'twistifications' on health care

An artist's rendering shows Chief Justice John Roberts,

An artist's rendering shows Chief Justice John Roberts, center, speaking at the Supreme Court in Washington, D.C. From left are Justices Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito Jr., and Elena Kagan. The Court, in a 5-4 decision, largely let stand President Barack Obama's health care reform law, with Roberts casting the key vote, against party lines. (June 28, 2012) (Credit: AP)

Why not just cut open a goat and be done with it? In ancient Rome, a special kind of priest called a haruspex would "read" the entrails of sheep to divine the will of the gods, the health of the growing season, or whatever else was weighing on the minds of men. Because animal guts don't, in fact, impart that much information about, say, next year's wheat harvest, the haruspices (called "auspices" in Latin -- from which we get the English word) could pretty much make it up as they went along. The same went for the auguries (priests who studied the flight of birds). Ultimately, the auspices and auguries made their decisions based upon the whims, vicissitudes and demands of politics in one form or another. If the rulers were happy with the result, they didn't much care what the guts actually said.

Fast-forward to chief haruspex John Roberts.

In the majority opinion written by Roberts, the Supreme Court held that the mandate to buy health insurance under the Affordable Care Act (aka ObamaCare) is unconstitutional under the Commerce Clause and the Necessary and Proper Clause. But Roberts also found that it's constitutional under Congress's power to tax. It is on these grounds that Roberts upheld the constitutionality of ObamaCare, siding with the four liberal justices of the bench.


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The upshot is that Congress cannot use the Commerce Clause to force you to eat broccoli, but it can tax you into doing so. Huzzah for liberty! To reach this decision, Roberts had to embrace a position denied by the White House, Congress and vast swaths of the legal punditocracy: that the mandate is a tax for the purposes of constitutional consideration but not a tax according to the Anti-Injunction Act (which bars lawsuits against taxes until after they're levied). Roberts' effort, wrote Justice Antonin Scalia in dissent, "carries verbal wizardry too far, deep into the forbidden land of the sophists." Let the record show that the sophists were valued defenders of entrail-reading.

Of course, there are substantive arguments in favor of Roberts' 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 Barack 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. Bitches." More sober-eyed liberal legal experts took similar positions. Roberts' opinion was "statesmanlike," they claimed, and, more bizarrely, "apolitical."

Some, such as constitutional scholar Jeffrey Rosen, speaking on National Public Radio, even celebrated Roberts' 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." Now, I don't know what's in Roberts' heart, but no court watcher I've heard from puts much weight on the idea that Roberts did anything other than reason backward from the result he wanted in order to buy respect from the court's critics at the expense of his own beliefs.

At least that's one thing both fans and critics of this ruling can largely agree on.

Some of Roberts' defenders claim he's outmaneuvered everyone. By upholding Obamacare, he's made future conservative decisions unassailable. He's poisoned the well of the commerce clause for liberals. He's removed the court as an election-year issue.

He's gift-wrapped for Mitt Romney the attack that Obama has raised taxes massively, violating a host of promises and assurances. And, again, he's saved the legitimacy of the court.

That's all very interesting, but it leaves aside the real issue: None of those concerns are what was asked of the court. That so few people seem to care augurs poorly for the rule of law and the auspices of our republic.

Jonah Goldberg is editor-at-large of National Review Online and a visiting fellow at the American Enterprise Institute. You can write to him by e-mail at JonahsColumn@aol.com, or via Twitter @JonahNRO.

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