"It profits me but little that a vigilant authority always protects the tranquillity of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life."

--Alexis de Tocqueville, Democracy in America

Friday, June 29, 2012

Jay Cost on Roberts

Jay Cost also echoes my point from yesterday about Roberts' long-term chess move with the Obamacare decision:

Roberts actually secured two, hugely important consitutional victories (if not policy ones) for conservatives. He lmited the scope of the Commerce Clause in a meaningful way, spoiling the liberal hope that it confers upon the Congress a general police power. He also won a significant victory for supporters of our dual sovereignty system; by striking down portions of the Medicaid expansion, he sent a clear message that there are limits to how the federal government can use money to boss the states around. These are two enormous triumphs in the century-long war over the principle that the Constitution forbids unlimited federal power.

Unfortunately, the chief justice did not go the whole nine yards and just repeal Obamacare. However, the voters can still attend to that in November!

The last point is the most important and probably entered largely into the Chief Justice's calculus.   He knew the obvious:   that a decision by the American people in the election to elect Romney as President and a Republican Senate and House would lead to the repeal of Obamacare and, importantly, would have much more legitimacy than the legal ruling of a 5-4 majority in the Supreme Court.   And he also knew the opposite:  that even if Obama was re-elected, in the fullness of time, once the Rube Goldberg contraption is implemented, people will realize what a mistake it was.

He also knew that, at age 57, he probably has 25 more years as Chief Justice, and lots more decisions to make that might be very difficult:
  • on affirmative action in hiring and college admissions;
  • on campaign financing and free speech;
  • on the limits of Presidential power to prosecute undeclared wars;
  • on privacy in the Internet age;
  • on abortion, euthanasia and Life issues
  • on the limits of current Congress' ability to borrow money from and impose liabilities on future generations of Americans.
In short, his long-term credibility, and the Court's, does really matter.

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