ObamaCare and Roberts

Before the decision, liberals were desperately afraid of a political 5-4 result. Today they celebrate a political 5-4 result.

In retrospect, no other result was probable. Obama surrogates were clear that if the court overturned ObamaCare, questioning the legitimacy of the court would have been at the heart of his re-election campaign. Any responsible Justice would seek to avoid that. This also means the court couldn't very well punt -- an Obama re-election would put the court on even weaker ground. On the other hand, there was no way Roberts, or even Kennedy, were not going to uphold federalist principles, which are the bedrock of what it means to be a conservative judge.

Roberts' decision had obvious flaws. It is cumbersome to read in full and it's logic is uneven. However, last minute or not, was absolute genius.

In particular, as he noted "resolving this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries." Conservatives, above all, should understand that the court cannot simply resolve political controversies by coming down on one side or the other: Abortion is still a political controversy and Gay marriage will continue to be long after the court expands the constitution to include it. In a democracy, the only way to settle political controversies is to persuade the public. When the court ham-handedly wades into a controversy it cannot resolve, it does so at the expense of its institutional authority.

Roberts opinion is attentive to public opinion in a number of ways. It contains a number of deadly, made-for-repetition, sound-bites. His "umpire"-style, even-handedness, will now be so fixed in the public mind that liberal critics will damage only their own credibility when they (inevitably) return to accusing him of being a partisan ideologue. Had the court overturned the unpopular mandate, Democratic candidates, Obama above all, would have been able to distance themselves from it in the fall, whereas certifying the mandate as a tax is an obvious gift to Republican candidates. Contributing to a Republican victory is the most effective manner -- even for a Chief Justice -- to settle this controversy in the favor of conservatives.

Finally, and above all, Congresses' politically easier spending, necessary and proper and commerce powers are all now more limited. ObamaCare would never have passed if its supporters were forced to acknowledge the mandate as a tax. Future, similar, congressional power graps will have to more honestly confront their tax-ness during the legislative process and therefore are -- Roberts has ensured -- less politically viable.