In the days following the shocking John Roberts ruling on Obamacare, we have seen many attempts to explain and justify the chief justice’s decision. That debate is interesting and worthwhile. But there is another lesson that may be even more important than the political struggle to repeal Obama’s Affordable Care Act.
Respected conservative pundits like George Will and Charles Krauthammer say Roberts made a political decision to defend not the Constitution itself but the Supreme Court “as an institution.” But is the Supreme Court held in higher public esteem if its members make rulings based on politics and not constitutional principles? No, it is not.
A second lesson is equally chilling, and it is based on how Roberts arrived at his decision. We now know that standards of constitutional discourse and debate are not as important to the chief justice of the United States as the cultural standards that control social status and a judge’s “place in history.”
The Roberts Obamacare ruling has already inspired some dark humor. “We must defeat Barack Obama because if he wins a second term, he will appoint more federal judges like … well, judges like John Roberts.”
Sadly, when the dust settles and all the arguments are considered, there is only one conclusion to be reached: Roberts surrendered constitutional standards in favor of the cultural standards of the nation’s power elite.
Should we have been so surprised that Roberts would cave in this manner? Yes, surprise and shock are appropriate. Why? Because the possibility of such surrender had been widely discussed and dismissed in the weeks following the oral arguments before the court in March. Most “court watchers” thought Roberts would not be swayed by arguments outside the realm of the case’s legal briefs and oral arguments.
Yet, within one week of the March hearing, the White House began a propaganda assault against the Supreme Court with this line of argument: “Surely the judges will not endanger their place in history by overturning an act of Congress aimed at improving people’s access to health care.”
That White House propaganda campaign had two themes. First, Obama tried to say that the Supreme Court should never strike down an act of Congress because Congress had deliberated and acted in a certain way, and courts ought to respect the separation of powers. That argument was a dead end because clearly, there is a 200-year history of the court doing precisely that – voiding laws because they were contrary to the Constitution.
The second line of White House attack, a flanking movement, proved successful: The Roberts Court would not be viewed as “progressive” if it invalidated Obamacare.
Leaks coming out of the court now tell us that Roberts initially voted with the four conservative jurists to throw out PPACA in its entirety. Then a month later, he changed his mind. The White House propaganda campaign to intimidate Roberts worked.
Do you recall such concerns about a judge’s “place in history” being a factor in Supreme Court decisions that overturned decades of conservative precedent? Did the Warren Court worry about criticism from the media or academia when in 1962 it overturned 150 years of jurisprudence to declare that both chambers of state legislatures must genuflect before the altar of one man, one vote? Did the Burger Court worry about its status when it invented a previously unknown constitutional “right of privacy” in Roe v. Wade?
The point is not lost on judges: They need to worry about their social status and their place in history only if they are considering a blow to “progressive” causes, not conservative principles.
The lesson here for conservatives is one many do not want to face. The Roberts ruling upholding Obamacare was not based on principles found in the Constitution, and better constitutional arguments would not have changed his mind. Roberts’ decision is incoherent and contradictory if you try to follow his argument on constitutional grounds. The Roberts ruling can only be understood as a surrender of constitutional argument to political argument, and it is a political argument based on cultural status. No judge wants to be on the “wrong side of history.”
The lesson here is sobering, indeed alarming, for citizens who revere the Constitution and look to the Supreme Court as the ultimate safeguard against unchecked government power. That bulwark has never been perfect, but now it is in tatters.
When our “best and brightest” go over to the dark side, we are on a downward path Tocqueville’s “soft despotism” and maybe worse. Patriots now have no alternative but to consider new strategies and new weapons if liberty is to be preserved on this much wider battlefield.
If our cultural elites have now surrendered the Constitution, this does not mean that We the People have willfully surrendered our liberties. It means that the Constitution must be refortified with new amendments and new protections. Radical solutions like state nullification will gain new support.
In the words of South Park’s young rebels, dude, it’s on!
Tom Tancredo represented Colorado’s 6th Congressional District from 1999-2009 in the U.S. House of Representatives and finished second to John Hickenlooper in the 2010 Colorado gubernatorial race