Chief Justice Roberts is kind of like Hakuin, the sort of Zen master who asks you if Obamacare is constitutional, and then whacks you with a shinai if you answer anything but “Moo!”

Chief Justice Roberts, in a manner provocative of keen curiosity, and apparently at the last minute, evolved a new (and extremely Zen) jurisprudential philosophy, urging Supreme Court justices to adopt an extremist philosophy, strangely combining restraint with activism, out of an exaggerated deference to the alleged superior expertise and mandate of Heaven possessed by elected legislators.

Apparently when an elected Congress proceeds to violate the Constitution, according to Mr. Roberts, the good Supreme Court justice will peer skyward, mutter “tsk, tsk” to himself, and proceed to pore closely over the Constitution to find some loophole which can be used to finagle the violative legislative measure into Constitutional legitimacy. He will then wave from afar to the inhabitants of the American Republic, and in his heart wish them the best in capturing total control of both other branches of government, so they can repeal the atrocity.

Protecting Americans from the consequences of their electoral choices, Mr. Roberts explicitly assured us, is not his job.

It is implicitly our job to protect ourselves from having our rights trampled and the Constitution made into a mockery by either winning landslide electoral victories totally repudiating the party currently in power, or possibly by launching a successful armed revolution. And good luck to us, because we certainly are not going to be receiving any help from Mr. Roberts.

Adolph Hitler concluded in 1945 that the German people were demonstrably unworthy of his genius and deserved to lose, and the Russians were really the master race. Mr. Roberts clearly shares this kind of shape-up or ship-out view of Constitutionalism in an electoral democracy. If you lose elections, don’t go crying to Chief Justice Roberts’ Supreme Court. The correct rule is not what the Constitution says, or what the framers had in mind, but the will of the voting electorate as interpreted by the ukases of the successful professional politicians.

Win elections, control Congress and the White House, says Chief Justice Roberts. “There is no ‘try.'”

Andrew C. McCarthy identifies one of the key things wrong with John Roberts’ interpretive maneuver.

Chief Justice Roberts & Co. … said the American people are not entitled to an honest legislative process, one in which they can safely assume that when Congress intentionally uses words that have very different meanings and consequences — like tax and penalty — and when Congress adamantly insists that the foundation of legislation is one and not the other, the Court will honor, rather than rewrite, the legislative process. Meaning: if Congress was wrong, the resulting law will be struck down, and Congress will be told that, if it wants to pass the law, it has to do it honestly.

Just as an appeals court may not legitimately rewrite an indictment and revise what happened at a trial, neither may it legitimately rewrite a statute and fabricate an imaginary congressional record. But today, the Supreme Court rewrote a law — which it has no constitutional authority to do — and treated it as if it were forthrightly, legitimately enacted. Further, it shielded the political branches from accountability for raising taxes, knowing full well that, had Obama and the Democrats leveled with the public that ObamaCare entailed a huge tax hike, it would never have had the votes to pass.

—————————

In NFIB v Sebelius, Chief Justice Roberts explictly renounces the Supreme Court’s responsibility for strict enforcement of the Constitution on the grounds of deference to the superior expertise of, and the mandate of Heaven possessed by, elected legislators.

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions. …

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

In fact, Roberts asserts the existence of an actual obligation on the part of the Court to use intellectual ingenuity and interpretive creativity to somehow find a theoretical basis on which an unconstitutional piece of legislation, like the Affordable Care Act, can be read differently, in order to finagle it into effect around the Constitution.

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government,means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance.Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read.

After all, according to Roberts, if the American people really dislike what elected legislators have done, they need only overcome the enormous power of incumbency, the vast nation-wide political organizations and interests behind a given measure and the political leaders who passed it, their campaign chests stuffed with hundreds of millions of dollars, all the forces of entropy and inertia, and now-established practices, institutions, and persons dependent on them, and just throw all the rascals out, win the presidency, and majorities of both houses of Congress, and possibly a super-majority in the Senate capable of closing down the filibuster, and the nation can readily thereby correct “the consequences of (past) political choices.”

If one subscribes, it seems to me, to the theory of a system of divided branches of government with checks and balances, adopted by the framers on the basis of the theories of Montesquieu , protecting the American people from the consequences of the electoral choices is precisely what the Supreme Court was created to do.

I would be very interested in reading the particular number of the Federalist Papers in which Madison, Hamilton, or Jay explains that devising sophistical readings of a law in order to allow it to appear to conform to the boundaries of enumerated powers in the Constitution so that all possible fruits of unfortunate electoral decisions may be fully allowed to be experienced by the inhabitants of the American Republic and the ephemeral will of the electorate be unconstrained is really the intended responsibility of highest judicial tribunal.

Paul Rahe makes a very interesting argument that John Roberts only appeared to cave. That, in reality, the Chief Justice was playing a diabolically clever long game strategy which involved permanently gutting Congressional illegitimate exploitation of the Commerce Clause while only apparently surrendering on Obamacare. Roberts, he contends, vastly enhanced the authority and immunity to liberal attacks of the Court, while dealing a deadly blow to the regulatory administrative state, and yet, hidden in the Tax Powers interpretation, astute commentators are able to identify aspects of the opinion boding very, very ill for Obamacare.

Most conservatives … suspect that John Roberts did not have the stomach to confront the President and his party. See, for example, Joel Pollak’s post Did Roberts Give in to Obama’s Bullying? Moreover, there is evidence that the opinion authored by Justice Scalia was originally a majority opinion. Roberts was forced to back off. His was an act of judicial cowardice. …

Or was it merely a recognition of the weakness of the judicial branch? … Roberts is very much concerned with sustaining the legitimacy and influence of the Court, and Obama and the Democrats have made it clear that they would regard a decision overturning Obamacare as a declaration of war.

There is, I am confident, more to it than this. In his opinion, the Chief Justice affirmed the principle asserted by Justices Kennedy, Alito, Scalia, and Thomas. He made it clear that the commerce clause does not give Congress authority over economic activity that we do not engage in. He also made it clear that the necessary and proper clause cannot be applied to achieve this end. In short, he joined these four Justices in setting a clear limit to the commerce clause, and he paved the way for future challenges to extensions of the regulatory state.

At the same time, he dodged the political firestorm, and nearly all of the liberals who have commented on the matter – a slow-thinking lot, in my opinion – have applauded what they take to be cowardice on his part as “judiciousness.” Glenn Reynolds at Instapundit was among the first to recognize that Roberts might be playing an elaborate game. … Reynolds pointed to one crucial fact: [Emphasis added] Senate rules do not allow a filibuster when the bill under consideration has to do with imposing or repealing a tax. If the Republicans take the Senate and the Presidency, they can now repeal the individual mandate. They will not need sixty votes. …

[Another crucial detail] The version of Obamacare that became law originated in the Senate. The Constitution stipulates that all tax bills must originate in the House. [It is possible to] file another suit arguing that the mandate is unconstitutional because the Senate cannot originate tax bills.

Chief Justice Roberts hurrying off to write his decision.

Looks like. David Bernstein, at Volokh, shares evidence that Chief Justice Roberts switched his vote and the majority on the Court changed.

Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion … (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA?