Splish! Splash! John was taking a bath!
There are a lot of metaphors from the sports world to describe Chief Justice John Roberts’s defection to the liberal bloc in Thursday's Supreme Court ruling holding the Patient Protection and Affordable Care Act ("ObamaCare") and its individual mandate constitutional. You could say the good judge is ambidextrous, appearing on the lineup card as a right-handed hitter, but one who throws left once the ball is in play. You could call him a broken-field runner, who feigns a run in one direction, then abruptly turns and runs in another. But it may be best to think of it in terms of a fighter taking a dive. "Sorry, kids," Big John might have said to those expecting a "strict construction" of the powers of Congress under the Constitution, "but it's not your turn."
For the opponents of the ever expansive and imaginative "living document" concept of the Constitution are always the "kids" who must wait our turn. And we must never be allowed to face, much less accept, the reality that it never is and never will be our "turn." We are like Charlie Brown, running up to kick that football each autumn, believing that this time Lucy will be true to her oath and will not snatch the ball away at the last second, leaving us making a mighty kick at the air and landing flat on our backs. For whenever we think we have five votes for the Constitution on anything, at least one of the "conservative" justices may be counted on to go into the tank. Did we really think it would be different with Georgiebird's (Bush the Lesser’s) first pick for the high court sitting as chief justice?
So this time it wasn't Justice Kennedy. And both "Diva" David Souter and Slippery Sandra (and rarely Cassandra) Day O'Connor are gone. So Roberts did the ignoble deed. So this time it wasn't the marvelously versatile Commerce Clause, or the extremely convenient "necessary and proper" clause, or even the incredibly elastic and all encompassing "general welfare" clause that was used as the battering ram that knocks down any closed doors or other barriers to the increasingly unlimited police power of the federal government. No, this time it is power of Congress to lay and collect taxes that justifies what the statute itself says is not a tax but a penalty for not buying something Congress has deemed it necessary for us to buy. "Close the door, they're coming in through the windows!" It matters not where the secret tunnel is found or called, nor what the rationale for its construction might be. The important thing is that there be a passage to unlimited federal power and that there be at least five justices willing to defend it. Because as another "surprise" liberal on the high court, the late Justice William Brennan, said, "With five votes you can do anything around here."
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Jack Kenny (photo)