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John Roberts Saves Obamacare For the GOP

June 28, 2012

John Roberts — Obamacare’s best frenemy

By now, every person in the U.S. who is interested in the outcome of this case knows that the Supreme Court has upheld the Affordable Care Act (aka “Obamacare”) as constitutional.

You are probably also aware that it was Chief Justice John Roberts, not Anthony Kennedy, who provided the swing vote giving progressives a victory on this most contentious issue. I’ve joked around this morning on the Twitter machine that I’m expecting the Tea Party’s announcement of a primary challenge for Justice Roberts any minute. Right now, many conservatives are apoplectic about Roberts and his part in this decision.

But before you give John Roberts too much credit, let’s look at the decision and do some careless speculating about his motivations!

We know from Kennedy’s dissenting opinion that  four justices were ready to throw the whole thing out. We know from Justice Ginsburg’s bench opinion that four justices were prepared to uphold the legislation based upon the commerce clause. What we got was a 5 to 4 decision with Roberts siding with the liberal justices, but on the basis of Congress’ power to tax, rather than the commerce clause.  Why does this matter?

Sure, Roberts had to be motivated in part by a desire to preserve some shred of independent, non-partisan credibility on the Court — but despite what most pundits are saying, I just don’t buy that as his main concern. The truth is that Roberts found what is, for him, the best political option to save the GOP, as well as Dems, from the total clusterf*ck that throwing the whole thing out would have caused. (And my guess is that many Republicans legislators are quietly thanking him for this.)

By choosing to go with the tax argument, Roberts allows Republicans to now rant about the “the Obamacare tax!!!!” For a patently partisan Chief Justice, this was the best outcome he could devise.

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