The New Dred-Scott Decision
With his ruling upholding Obamacare, Chief Justice John Roberts has run roughshod over the Constitution and rewritten a terrible piece of legislation so that it could be deemed legal. By classifying Obamacare as a "tax" instead of a mandate, Roberts has expanded the government's power to tax beyond any reasonable limit.
It is a stunning and utterly reckless decision.
The Obamacare ruling is surely the greatest single judicial blow against traditional notions of American liberty since Dred Scott v. Sandford (1857), in which the Supreme Court ruled that under the Constitution, blacks could have no human rights which white people could be bound to respect.
With the stroke of a pen, Roberts and the four liberal justices have given the government the right to tax nonbehavior. American citizens can now be ordered by the government to do or not do virtually anything; you can be taxed for not buying the right foods, for not driving the right kind of car, or not doing the right type of work. If you don't pay the tax, the government can throw you in jail.
The Obamacare decision lays waste to a basic concept of American liberty: the freedom to live as you please without interference by the federal government, provided you don't affect the lives of others. Thanks to John Roberts, the government can now punish you in the privacy of your own home for failing to act in conformance to its dictates.
Like other odious Supreme Court decisions of the past, this one was made based not on the Constitution, but on the political predilections of judges. In the Dred Scott decision, Chief Justice Roger Taney believed that by ruling that slavery could not be banned in federal territories, Civil War could be averted; instead, he all but ensured it.
Taney's calculations -- the political considerations that went into his decision -- lay far beyond the scope of the court's legitimate obligations. But he took them upon himself anyway. The result is an eternal moral stain in the annals of the Supreme Court.
The same type of logic seems to have informed Chief Justice Roberts' thinking. Already there are strong intimations that he changed his vote on Obamacare because of pressure exerted by the Obama administration and the media; bowing to it, Roberts punted the issue to voters rather than doing his constitutional duty – while scolding them for looking to the court to fulfill one of its core functions. In his craven haste to preserve the Supreme Court's "legitimacy" Roberts has undermined it all the more.
In the end, the American people tend to rectify the blunders of the Supreme Court. Dred Scott was overturned – bloodily – by the Civil War; Plessy v Ferguson was overturned by the Civil Rights Act of 1964. The people themselves will overturn Obamacare. But the damage done to the Supreme Court is a lasting thing.
National Review Online: Chief Justice Roberts's Folly