Much of the commentary on John Roberts’ pro-Obamacare decision has dealt with matters such as saving the Supreme Court, his own legacy, or strategically setting the table for future Supreme Court cases dealing with affirmative action. But what if the decision was actually motivated by none of these things? What if John Roberts is playing a more subversive, divisive game than anyone has so far considered?
Is it possible that John Roberts’ Obamacare decision was simply a ploy to enflame and enrage GOP voters and politicians to rally the base’s enthusiasm going into the congressional and presidential elections; or to motivate GOP politicians to repeal the act legistlatively?
Consider that Chief Justice Roberts has regularly voted along a conservative party lines with Justices Scalia, Thomas and Alito, with Kennedy so often being the swing vote. Roberts was appointed by George W. Bush to the highly conservative 2nd District Court in Washington, D.C., before being appointed the Supreme Court Chief Justice. But Roberts’ conservative bona fides were well-established even before the Bush 43 appointments. Roberts had clerked for Chief Justice William Rehnquist and worked in both the Reagan and Bush 41 administrations.
Roberts, to be sure, is a conservative true believer, but his conservatism is fair bit more innocuous than Scalia, Thomas and Alito. The point is that Robert doesn’t need to prove a thing to conservatives, but he sure can fool some liberals.
What could possibly lead me to conclude that Roberts’ aim was to enrage the GOP base and politicians? Well, the language in his decision. Without getting into the details of the lengthy decision, it’s common knowledge by now that Roberts rebuked the Obama administration’s attempt to argue the constitutionality of the Affordable Healthcare Act (AHA) on commerce clause grounds. This was in keeping with Roberts’ conservative ideology, but it was not the smoking gun.
Roberts stressed in his opinion that AHA was in effect a “tax,” since the costs levied for healthcare varied according to an individual or family’s income and a business’s revenue. And what word is more anathema to the GOP and its voting base than “tax”? By framing Obama’s AHA as a tax, Roberts supplied the GOP with ammunition with which to pummel Obama on the campaign trail and, of course, on the party’s propaganda mouthpiece, Fox News.
It might be countered, “Well, wouldn’t a 5-4 defeat of Obamacare serve the same purpose?” Not exactly. Yes, it would have emboldened the GOP, who would have relentlessly referenced the Act’s unconstitutionality, but being able to call the AHA a tax is far more semiotically-effective in terms of rallying the base.
And Roberts’ decision has already motivated the GOP into vociferously talking repeal through a legislative process known as budget reconciliation. In this process, the GOP (if they were to win the Senate and the Presidency) could fast-track the repeal with a 51-vote Senate majority, thus unraveling AHA.
Roberts, it would seem, is practically begging the GOP to dig deep and win the Senate and the Presidency, and so set in motion AHA’s repeal. It is a game of power politics. Why? The GOP was really the architect of AHA in the first place at the state level with Romney’s healthcare law, and at the federal level in the ’90s. It was only when Obama embraced AHA’s basic foundations, abandoning universal healthcare, that the GOP moved further right; not because they disagreed with Obama as much as they have a pathological need to defeat him at all costs.
And Roberts’ decision might well help them do it.