So, it’s time for recriminations. Whom to blame? I nominate Chief Justice John Roberts. Not for Obama’s victory, but for ensuring, single-handedly, that the consequences of that victory will be as devastating as possible. For the future of Obamacare now seems assured. The Affordable Care Act is the heart of the president’s project of radically transforming the character of the American social and political order. As Justice Kennedy put it, the Act “changes the relationship of the Federal Government to the individual in [a] very fundamental way.” It was rammed through Congress in an act of sheer power politics, without bipartisan support and against the will of the American people. It is manifestly unconstitutional (Roberts’ sophistical attempt to show otherwise notwithstanding -- more on that presently). It is a violation of the natural law principle of subsidiarity that will exacerbate rather than solve the problems it was purportedly intended to address, and it has opened the door to an unprecedented attack on the freedom of the Catholic Church to carry out its mission. And it will massively increase the already staggering national debt. Roberts, a conservative and a Catholic who no doubt personally opposes the Act, had the power to stop it, the constitutional basis for stopping it, and indeed the moral right and duty to stop it. And instead he upheld it, leaving the election of a new president the only realistic alternative way of stopping it. Now that path too is closed.
As was revealed after the Court’s decision was handed down, Roberts had in fact initially voted to strike down the Act’s crucial individual mandate, but changed his mind, apparently for fear of the political repercussions of such a decision. As Charles Krauthammer has suggested, Roberts’ theory that the individual mandate amounts to a “tax” -- a claim that President Obama had himself repudiated and which is at odds with the language of the bill -- was essentially a way of avoiding negative political repercussions while reworking the law so as to make it consistent with the Constitution. This, Krauthammer says, was Roberts’ solution to the problem of reconciling his commitment as a conservative to upholding the Constitution with his interest as Chief Justice in keeping the Court from being perceived as politicized.
In fact, of course, rewriting the law from the bench -- which is what Roberts essentially did -- is the opposite of conservative or constitutional, and to do so for fear of how the Court might be perceived just is to politicize the Court. Roberts “reconciled” his competing imperatives only by ruthlessly ignoring both at once. It was an act of willful legislative fiat worthy of the voluntarism and nominalism of William of Ockham, or indeed of the Hobbesian sovereign who is the political offspring of Ockhamite metaphysics. It was an act of naked power which served to uphold another act of naked power, which will in turn facilitate the federal government’s engaging in further acts of naked power.
Roberts has perhaps done as much damage to the causes of conservatism and limited government, and to the liberty of the Church, as has any other man in American history. His legacy, as much as Barack Obama’s, was cemented yesterday.
