John Robert’s Chess game

June 29, 2012 

I am not going to beat up on Chief Justice John Roberts for writing the 5-4 decision upholding what we can now call the Barack Obama Health Care Tax. I am disappointed, but not distraught. In reading his opinion, I conclude Roberts is playing at a different game than the rest of us. We’re on poker. He’s on chess.

First, I get the strong sense from a few anecdotal stories about Roberts during the past few months and the way he has written this opinion that he was very much concerned about keeping the Supreme Court above the partisan fray and damaging the reputation of the court long term.

Second, Roberts now forces everyone to deal with the issue as a political, not a legal issue. In the past 20 years, Republicans have punted a number of issues to the Supreme Court asking the court to save us from ourselves. They can’t do that with Roberts. They tried with campaign finance reform, which was originally upheld. This case is a timely reminder to the GOP that five votes are not a sure thing.

Third, while Roberts has expanded the taxation power, which I don’t really think is a massive expansion from what it was, Roberts has curtailed the commerce clause as an avenue for congressional overreach. In so doing, he affirmed the Democrats are massive taxers. This may prevent future mandates in that no one is going to go around campaigning on new massive tax increases. On the upside, we can tax abortion out of existence now. Likewise, in a 7-2 decision, the court showed a strong majority still recognizes the concept of federalism and restrained Congress in forcing states to adhere to the whims of the federal government.

Fourth, in forcing us to deal with this politically, the Democrats are going to have a hard time running in November claiming the American people need to vote for them to preserve Obamacare. It remains deeply, deeply unpopular with the American people. If they want to make a vote for them a vote for keeping a massive tax increase, let them try.

Fifth, the decision totally removes a growing left-wing talking point that suddenly they must vote for Obama because of judges. The Supreme Court as a November issue for the left is gone. For the right? That sound you hear is the marching of libertarians into Camp Romney, with noses held, knowing that the libertarian and conservative coalitions must unite to defeat Obama and Obamacare.

Finally, while I am not down on Roberts like many are today, I will be very down on congressional Republicans if they do not now try to shut down the individual mandate. Force the Democrats on the record about the mandate. Defund Obamacare. This now, by necessity, is a political fight and the GOP sure as hell should fight.

Sixty percent of Americans agree with Republicans on the issue. And guess what? The Democrats have been saying for a while that individual pieces of Obamacare are quite popular. With Roberts’ opinion, the repeal fight takes place on GOP turf, not Democrat turf. The all or nothing repeal has always been better ground for the GOP and now Roberts has forced everyone onto that ground.

It seems very, very clear to me in reviewing Roberts’ decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.

Erick Erickson is a CNN contributor and radio talk show host in Atlanta.

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