Did Roberts perform a triple axel?

By JONATHAN GURWITZ

New York Times News Service

In the days following the Supreme Court ruling on Obamacare, a consensus developed to explain the motivation of Chief Justice John Roberts in the landmark decision. Roberts’ vote with the four liberal justices on the court and the opinion he authored for the majority was as much informed by politics as jurisprudence. On the left, New York Times columnist Thomas Friedman wrote that Roberts “was inspired by a simple noble leadership impulse at a critical juncture in our history — to preserve the legitimacy and integrity of the Supreme Court.”

The New Yorker’s Jonathan Chait commented, “Striking down the law at this moment would have brought the Court to a tipping point.” By abandoning his conservative philosophy, Roberts “averted an immediate crisis of legitimacy.”

On the right, Washington Post columnist Michael Gerson said, “Roberts’ desire to defer, particularly on a divisive issue in the middle of a presidential election, is the right tendency, the correct Burkean instinct.”

Charles Krauthammer, his colleague at the Post, summarized Roberts’ thinking this way: “Law upheld, Supreme Court’s reputation for neutrality maintained.”

Perhaps. Such analyses go a long way in explaining the Roberts ruling’s legalistic contortions. But for the chief justice’s newfound admirers, especially the progressive ones who only a few weeks ago considered Roberts to be a right-wing automaton, it’s worth considering a different explanation.

If a chief justice renders decisions according to a political barometer rather than the letter of the law, perhaps he’s even wilier than the conventional wisdom gives him credit for being.

After Bush vs. Gore and Citizens United, a Supreme Court ruling that struck down the Affordable Care Act could have generated a backlash that would have propelled Democrats and President Obama through November.

By casting the decisive vote to uphold Obamacare, Roberts has given that impetus to Republicans and challenger Mitt Romney. Rather than taking one for the country, as Friedman put it, maybe Roberts was giving one to fellow conservatives — and doing so prior to a presidential election that may well determine the fate of four Supreme Court nominations.

Justices Antonin Scalia, Anthony Kennedy, Stephen Breyer and Ruth Bader Ginsburg are all 73 or older. Ginsburg has also been treated for pancreatic cancer. Either way it was decided, this decision was bound to highlight the power of presidential appointments.

By conceding the Obamacare battle — in effect, throwing it — Roberts may have enhanced the prospects of victory in the war for conservative control of the court. Or perhaps the Roberts’ ruling is just a bad decision — a train wreck of political and judicial forces.

In one section Roberts writes, “The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax” and, therefore, the Anti-Injunction Act does not apply. Pages later, he holds that it “may for constitutional purposes be considered a tax,” elsewhere that it “may reasonably be characterized as a tax,” and elsewhere still that “no one would doubt that this law imposed a tax.”

Roberts compares the individual mandate to a tax Congress might impose on homeowners who fail to comply with a hypothetical law requiring them to purchase energy-efficient windows.

As with government-mandated health care, the windows analogy appeals to liberal sensibilities. But imagine a different Congress imposing a tax on homeowners who fail to comply with a hypothetical law requiring them to keep and bear arms as a necessity of securing a free state — a concept that is actually enshrined in the Constitution. Maybe then, some of its enthusiasts might recognize the Roberts decision’s intellectual muddle and the political peril it contains.