Deconstructing Roberts 2.0
“Shrewd” best describes John Roberts, a journalist friend suggested. The chief justice ruled the health-care act’s mandate a “tax,” making it constitutional, but arming his conservative politician pals with a campaign weapon against Obama.
Already we are hearing that this is the biggest tax increase in the history of the nation, if not the world itself. This is unmitigated bull-bleep. It doesn’t come close.
According to the Tampa Times’ Pulitzer Prize winning PoliFact.com, based on its relationship to gross domestic product (the only fair way to compare dollars historically), it is less than one-tenth the largest tax increase in our history. The revenue act of 1942 represented a tax increase of 5.04 percent of GDP, while the Affordable Care Act reflects 0.49 percent—approximately the same relative increase as taxes passed in 1980, 1990 and 1993 by Presidents Reagan, GHW Bush and Clinton respectively. But who cares about facts?
Meanwhile, in his rare siding with the court’s liberal bloc, Roberts also happened to inoculate himself against the charge of being hyperpolitical. More like “fair and balanced.” But only for the moment.
Liberals may be praising him while the Limbaugh crowd is calling for his beheading right now, but those positions are certain to be reversed during the court’s next session—unless Obama, in a second term, is able to rebalance the court by replacing not only any resigning liberals, but also a departing conservative, the latter of which seems unlikely for a few years.
Here’s what’s coming up:
At least two major race-related cases will be reviewed: the historic Voting Rights Act and yet another ruling on the constitutionality of colleges considering race in applications, i.e., affirmative action. The betting is that both will go now that Sandra Day O’Connor, the swing vote that sustained them, is gone.
Two important gay-rights cases, California’s same-sex marriage ruling and Bill Clinton’s Defense of Marriage Act are in doubt, though there is some significant thought that says one or both might be decided favorably for the liberal side—though it’s unlikely Roberts will be the swing in another 5-4 decision. (I’m still waiting for someone to explain how gay marriage has ruined his or her traditional wedlock.)
But wait—there’s more.
Roberts was also the swing vote in determining that the ACA mandate would be unconstitutional based on Congress’s ability to regulate interstate commerce—the so-called commerce clause. This should delight conservatives and pain liberals. As the political linguist George Lakoff has pointed out, several important laws, especially in the environmental area—such as the Endangered Species Act—are based on the commerce clause. He sees the possibility that the clause now may be limited strictly to commercial transactions and not to preserve the environment, thus eventually killing the ESA.
“Roberts is no fool,” writes Lakoff in the HuffPost. “In one stroke, he both protected the Court from charges of ideology and became categorized as a ‘moderate,’ while enshrining two metaphor-based legal principles that can be used to promote and implement conservative policy in the future, with devastating broad effects.”
No fool—and shrewd indeed.
Don Rose is a regular columnist for the Chicago Daily Observer