Chief Justice John Roberts is still one of us.

by Gene Wisdom

Gene Wisdom

The recent Supreme Court decision upholding Obamacare is obviously distressing to us conservatives.  The linchpin of the “progressive” agenda of President Barack Obama, this legislation met and fed a firestorm since it was first introduced.  It has provided arguably most of the fuel to the Tea Party and the conservative electoral gains (because for most of us Republican gains are meaningless except insofar as they serve conservative positions) in 2010.   

Obamacare threatens our Republic in a myriad of ways, least of all the disaster that it represents financially to our country, in terms of dollars lost in that toilet spiral that is the federal budget.  It is, as we all know by now, a government power grab of one-sixth of the economy, and much of the slump we see in the economy is due to the uncertainty and fear employers have over the impact of that law.  And it is but the first step toward the goal State Senator Barack Obama envisioned years ago of a single payer health system—national health insurance.  When we hear or speak the word “socialism” in regard to this President our first thought is Obamacare. 

Because of the threats and deleterious effects of Obamacare we conservatives had placed great hopes on the case as it wound its way to the Supreme Court.  Serious Constitutional issues were at stake: misuse of the Commerce Clause, the extent of the taxing power, not to mention that health care is nowhere listed in the Art. II, Sec. 8 enumerated powers of Congress.  

If there is a benefit to this outcome, a silver lining, it is that it has animated the conservative base.  To be overturned now will almost certainly require a 60-vote filibuster-proof conservative Republican majority in the Senate and of course hanging on to the current lead in the House.  It will mean consecutive Republican—rather, conservative, Revolutions in Congress, not to mention re-taking the White House.  Conservatives know that and will renew their fights now in all of these battles.  Where I had made several small contributions to conservative candidates to the House and Senate around the country in the last election I have not done so yet in 2012.  Now I will. 

One product of this decision, however, I believe, is misdirected.  It is an animus aborn toward Chief Justice John Roberts.  To be certain, he has lent his vote and voice to a terrible and possibly disastrous decision.  Spitfuls of venom have been directed at him from our side, labeling him a turncoat to conservative hopes, and saying that we were misled that he would be a conservative Justice. 

Conservatives would do well to ponder his record to date.  Before his appointment to the Supreme Court, while a member of the D.C. Circuit, Roberts was part of a unanimous panel in Hamdan v. Rumsfeld which upheld the constitutionality of the military tribunals passed by Congress to try terrorism suspects.  In Gonzales v. Carhart (2007) Roberts voted with the majority to uphold the constitutionality of the Partial Birth Abortion Ban Act.  He is most often on the same side of important issues as Justices Scalia, Thomas, and Alito.  
  

It is time for conservatives to step back into character and reflect.  While I am very disappointed in Chief Justice Roberts I am not angry with him.  I believed him to be a man of integrity and I don't think he suddenly sold himself out in the side he chose in this.  I believe he is simply in error.  A grievous error to be sure, but not a wound to his character.   

One of the undergraduate courses I am most glad I took at Jacksonville State University was in Constitutional Law (actually one in Criminal Justice; and two in Political Science, the instructor a conservative and avid reader of National Review).  Those courses taught me that there are often two defensible positions on Constitutional questions.  That doesn't mean that both are right but only that one can reasonably find support in the Constitution for oftentimes opposing positions.  It is up to sincere and thoughtful Justices to search the Constitution and the Founders for the correct position.  It is not always an easy search.  

Two examples that I quickly think of are (1) Term Limits v. Thornton (1995), in which liberal Justice Stevens made a strong originalist argument against the federal term limits law, and Clarence Thomas, whom I deeply admire, wrote the dissent.  I found myself agreeing strongly with Stevens; and (2) another case (I think it was Kentucky v. King, 2011) in which liberal Justice Ruth Bader Ginsburg wrote a lone dissenting opinion (Alito wrote the opinion for the majority) against no-knock entry.  I believe the other eight were wrong. 

All that to say that reasonable minds can differ and reasonable minds may also err.  Although a very major and consequential case to do so on, that is all I believe that Roberts has done.  Have no fear, conservatives, and be of good cheer.  Roberts is still one of us.  

Gene Wisdom is an Alabama native but has lived in the Nashville area since 2007. He, his wife Vicki, and their dog Savannah live near Nolensville.  Gene is a conservative activist and leads the Conservative Fusion Book Club.

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