Dear Reader (and those not yet readers who will be required to become readers through the taxing authority granted me by me),
"Why do you keep calling it a tax?" Justice Breyer asked the solicitor general during the oral arguments for Obamacare last March.
The whole room burst into laughter.
But apparently not Chief Justice Roberts.
Despite the fact that pretty much every lower court found this tax claim laughable; despite the fact that President Obama indignantly insisted it wasn't a tax; despite the fact that the administration largely ignored the tax question in its defense of the law; despite the fact that the Congress made every effort to insist the mandate penalty was not a tax -- short of carving "this is no tax" with a potato peeler into their collective foreheads . . .
Justice Roberts concluded it is, in fact, a tax.
Now, I don't want to simply recycle my column today, but my problem with this is that this is b.s. Indeed, the Wall Street Journal's editorial this morning notes that the dissent keeps referring to "Justice Ginsburg's dissent," suggesting that until very late in the process Roberts agreed with the majority and had planned on overturning Obamacare outright, but then chickened out and concocted the most elaborate capitulation since the switch in time that saved nine.
Yes, yes: I know. Already numerous people I respect are praising Roberts for playing the "long game" (See: Jay Cost, Sean Trende, George Will, Charles Krauthammer, et al.) I get the argument: The decision rolled back the Commerce Clause; it created new political limits on expanding government (in effect, everything the nanny state wants to do now has to be called a tax to get over the constitutional plate); it restored the reputation of the Court so that future conservative decisions will be more readily accepted; it showed Roberts is the tortoise and Obama the hare.
Meh.
Look, I'll be delighted if all these things turn out to be true. But as a conservative, I'm skeptical of these three-carom-shot approaches to politics. I remember all of the people who wondered whether it would be better if McCain lost in 2008 (including me!). It turns out Ed Koch's mother was right when she told him, "It's always better to win than to lose." Everyone hailing Roberts's brilliance is in effect congratulating Jack for bringing home the magic beans -- before they grow into a giant stalk. He traded the cow of overturning Obamacare now for some "long game" beans that might one day grow into something cool. It is an un-conservative tendency to credit one man with being able to plan that far out into the future.
The argument you hear a lot is that Roberts was a genius for figuring out how to gut the Commerce Clause while still preserving the Commerce Clause. But you know what else he could have done? He could have gutted the Commerce Clause and overturned Obamacare! How? By simply ruling what he believes and signing on with Scalia, Kennedy, Alito, and Thomas. Instead we're being told that win-lose is better than win-win. Not. Buying. It.
Moreover, what Roberts did is not in his job description. Whatever his motivation -- whether it was to defend the Court's reputation or his own, or if it was to deliver some ingenious slow-acting poison to the Nanny State -- that's not what justices are supposed to prioritize. If he's the umpire he claims to be, he should be umping.
Now, I'm not naïve. I understand that the justices take politics -- internal and external -- into account. But they're supposed to hide it better.
Caving to the Liberal Zeitgeist
Roberts didn't hide it at all. Instead he all but declared that the Today Show and Meet the Press chatter about polarization and partisanship on the Court got to him. This is an error of Aesopian proportions. If you think you can appease the Doris Kearns Goodwin Caucus you don't understand how liberalism works. I guarantee it: The next time there's an important case before the Court, liberals and "moderates" will insist that Roberts capitulate again if he wants to keep his hard-earned reputation as a reasonable man. Indeed, all he's done is fuel the notion that a reasonable conservative is one who surrenders to liberals while offering interesting explanations for their surrender.
Judicial Activism in the Name of Restraint
I must say I really liked the ease with which David Brooks rationalizes Justice Roberts's brazenness as a form of restraint:
In his remarkable health care opinion Thursday, the chief justice of the Supreme Court restrained the power of his own institution. He decided not to use judicial power to overrule the democratic process. He decided not to provoke a potential institutional crisis. Granted, he had to imagine a law slightly different than the one that was passed in order to get the result he wanted, but Roberts's decision still represents a moment of, if I can say so, Burkean minimalism and self-control.
Like School on Saturday: No Class
You've probably already heard that the Obama campaign is selling these T-shirts.
It's a small thing in the grand scheme, but symbolic of something larger. At least I think so. I'm still working through what I want to say. So herewith some quick notes on Tackiness in the Age of Obama (soon to be a coherent article somewhere).
Just yesterday, in response to the Supreme Court ruling, DNC aides started tweeting "It's Constitutional Bitches!" and "Take that mother****ers!"
At first, I was going to say it was just his campaign's more youthful staffers, but the truth is they take their lead from the president. It wasn't too long ago Obama was joking about his wife performing oral sex. Not even Bill Clinton would do that.
And while that obviously is a pretty damning indictment given that Clinton is something of a white-trash pontiff, it's also a bit unfair. Clinton was a sleazy man who understood that the office required certain public concessions to decorum and protocol, which he often failed to live up to. I don't think Obama the man is remotely as sleazy as Bill Clinton was (as far as I can tell, he's a good father and husband). But Obama seems to think he's bigger than the office he holds. Moreover, politically, Obama wants -- and needs -- to be seen as cool by young voters. And today's hipster culture requires a certain glib profanity married to a weirdly forced earnestness. "We care more than you heartless Republicans, but we're also cool enough to drop f-bombs."
Perhaps the best example isn't profane at all. The Obama Gift Registry is perfectly banal, but so incredibly tacky. I cannot imagine ever giving anything like that as a (non-ironic) gift, not because I care less about politics than the progs, but because it just strikes me as terribly inappropriate, dragging politics into places it doesn't belong.
The thinking behind it strikes me as a variant of the thinking behind the Life of Julia website. There's no aspect of our lives where politics and government don't define us. It's the idea that progressive politics is so cool, there's really no boundary for progressivism. It can intrude anywhere because it's the f'ing bomb, as it were. It strikes me as the partisan façade of political correctness, now with more cursing.
It's all made acceptable because of Obama's cult of personality and the misperception that he's more dignified than he really is.
Or something like that.
No Various and Sundry today. I've got to get on the road and drive back to D.C. from Columbus, Ohio.
See you next week!
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