As I’ve discussed before [see "Jumping the Broom—How Married are Gay Married Couples?" July 17, 2011] the United States Supreme Court is divided into four liberals, four conservatives, and then there’s Justice Anthony Kennedy, who’s always the swing vote in cases where those labels are important. At the Ohio State Law School, where I teach, we recently had a faculty skit at the law school’s comedy night in which professors gave mock lectures about their subjects. When it came time for the Constitutional Law prof to speak he explained that "Constitutional Law is easy: it’s whatever Justice Kennedy is thinking at the moment."
|Justice Anthony Kennedy|
Everywhere conservatives (just tune into Fox News to verify this) are slumped across tables, weeping, pounding with their fist and moaning, "Why? Why?"
|Chief Justice John Roberts|
The dissenting judges (Scalia, Alito, Kennedy, and Thomas) were infuriated. With a damning legal analysis they explain in convincing detail that there is no way to transmogrify the individual mandate into a tax, and that the attempt to do so is absurd. As I read their dissent, I’m forced to agree that they’re right, and that calling the mandate a tax is simply and obviously a mistake as a matter of law (I hasten to add that this is not my field). The dissenters then explain that proper analysis would also lead to invalidating the entire statute since the portion the majority held to be unconstitutional cannot be severed from the rest of the statute without the Court just guessing whether Congress would have passed the rest without it. The majority is simply wrong in the dissenters’ careful and persuasive analysis, so the majority has given invalid reasons for upholding Obamacare.
It will amaze readers of this blog to learn that I agree with the dissenters as to their conclusion about the mandate being a tax, and if they’re right as to that, the Court should have stricken Obamacare from the United States Code. This leads to the real question: why would Chief Justice John Roberts have done something that appears so wrong (holding the mandate to be a tax) and thereby saved the statute from being declared unconstitutional? The answer, I suggest, is something that has bothered Justices before: the weight of history.
|Justice David Souter|
I don’t think John Roberts is about to become a liberal, but I do think that a similar historical judgment made him write the majority opinion when in normal circumstances he would have voted with his usual crowd. Roberts knows that the most shameful moment in Court’s last few decades occurred before he joined the Court when in Bush v. Gore(2000) the Court stopped the ballot recount in Florida and gave the presidency to Bush. It was a purely political move, and, given the facts, indefensible. Now John Roberts, who has to think about what history will say about his tenure as Chief, was facing another election-changing vote, and if he’d have voted as expected once again the Court would have produced a decision in which five Justices appointed by Republican presidents would have handed the election to a Republican.
He just couldn’t do it—not even if he had to create a tax that Congress didn’t intend.
Now let history judge him.
"Gay Marriage, The 6th Circuit, Jeffrey Sutton, and the Supreme Court," November 13, 2014
"Alan Turing: Torturing a Gay Genius to Death," November 26, 2014
“A Guide to the Best of My Blog,” April 29, 2013