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28 June 2012

Now we know why Scalia was so grumpy last week

Eventually, why Chief Justice John Roberts joined with the U.S. Supreme Court’s least conservative justices to uphold Obamacare will come to light. Eventually, of course, will be years, probably decades, in the future. For now, we can only turn to the opinion itself for clues.

I’d like to think Robert’s humanity finally asserted itself, and perhaps it did, but I suspect he had two objectives less noble in nature: protecting the court from self-inflicted injury, and producing an opinion with the narrowest possible view of federal powers.

There was ample precedent and argument for upholding Obamacare. The case against it was 95 percent political and five percent legal. Striking it down would have been a political act — legislating from the bench — at least as disreputable as Gore v. Bush, and far more damaging to the court’s reputation as a disinterested arbiter of law. Roberts understood that.

Roberts also understood that by joining the majority and writing the opinion he could assert the narrowest possible view of federal power, thus, from a conservative’s point of view, making it as difficult as possible for the opinion to be used as precedent supporting liberal decisions.

That must have rankled the court’s most conservative justices, who wanted to throw out and stomp to a pancake the Affordable Care Act regardless of the damage to the court’s reputation and legitimacy. Now we know why Scalia was so grumpy and intemperate when the court handed down its decision on Arizona’s papers please immigration law. He knew he had lost on health care.