May 23, 2013
The Dark Side of Roberts’ Ruling
Posted on Jul 7, 2012
By Bill Blum
“All of this represents,” Barnett continues, “a fundamental departure from how most law professors viewed constitutional law” before the Roberts opinion was issued. Indeed, given the court’s past precedents on the commerce clause, an article in Bloomberg Businessweek on the eve of the oral arguments in March predicted that the individual mandate would be upheld by a resounding vote of 8 to 1, with Clarence Thomas voicing the lone dissent.
Plainly, the outcome of the Obamacare litigation should have been a no-brainer. It became instead a nail-biter decided on the slenderest of reeds (the power to tax)—a backup argument only belatedly embraced by the administration and, according to some news outlets, adopted only at the last minute by Roberts himself.
The reason for Roberts’ turnaround is also plain. The chief justice—who once clerked for William Rehnquist and served as a deputy solicitor general under George H.W. Bush—hasn’t suddenly morphed into a consensus building moderate. Nor have the court’s other conservatives changed. If anything, they have evolved into an even more mean-spirited version of the tribunal that handed down Citizens United two years ago.
Next term, as the nation votes in a presidential election that could determine the court’s composition for a generation, the docket will include cases on affirmative action, voting rights and in all likelihood same-sex marriage. The stakes couldn’t be higher. For American liberals and progressives, it’s time to end the celebrations over Obamacare and refocus on the long hard slog of reclaiming the court.
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