Roberts' deep game?

If I were offered an opportunity to tar and feather the Chief Justice, I'd gladly chip in for the tar. His vote upheld Obamacare, including the individual mandate, a grossly unconstitutional act.

This issue has ignited the conservative sphere. Yet some conservatives are suggesting a different perspective than the "Roberts betrayed us" view to which I and most other conservatives are inclined. They make some interesting points.

George Will and Elizabeth Scalia have great posts on Roberts' 'strategy', and the clearest discussion is from Timothy Dalrymple in his essay Five Possible Silver Linings in the Obamacare Decision.

Dalrymple lists the bright spots:

1. I know a lot of conservatives are writing now on how the power of the federal government just expanded dramatically, and they may be right. But I think it’s possible that the long term effect will be rather to narrow — not legally but practically and actually — the sphere of government power. First of all, placing the ACA under the Taxation power instead of the Commerce power places greater limits on how that power can be used and dramatically softens the penalty for non-compliance (you simply pay a tax, you cannot be jailed or otherwise punished for failure to purchase health insurance). Congress cannot compel you to purchase insurance; it can only compel you to pay a non-extreme, non-coercive tax if you wish not to purchase insurance. Second, by laying waste to the Commerce Clause argument and making clear that this sort of thing can only be done through the taxation power, the decision may make it harder to pass these sorts of laws in the first place. You cannot hide in the subterfuge of the Commerce Clause — or, if you try, everyone will say, “No, we know better now, this is and must be a tax.” Roberts’ decision will press new social welfare initiatives out of the commerce clause and into the tax code — and passing a new tax is much more difficult as a political matter than passing a new regulation. 

2. By placing the ACA under the umbrella of the tax power, Roberts may have made the ACA easier to overturn by several orders of magnitude. The ordinary process, of course, requires 60 votes to overcome a filibuster in the Senate. But when it concerns budgetary matters, including taxes (like the Bush tax cuts), 51 votes are sufficient to put the law on hold for 10 years. So, theoretically, 51 Republicans will be capable now of overturning the ACA at least for ten years (at which point it could be reviewed again). Fifty-one Republicans could have attempted this in any case, but now they can do so with much greater plausibility because this is a matter of taxing and spending and not regulation of commerce. 

3. The importance of the ruling on states and Medicaid should not be lost in all of this. The administration’s claim that it could remove all medicaid funding for the states that refused to expand medicaid in the way the administration wants was rejected. The administration can condition new, additional funding on states’ cooperation, but not the preexisting funding. This is a big difference. It will be much easier for states to opt out of the medicaid expansion. 

4. The spin war will be interesting to watch. President Obama and his allies clearly did not want to label the mandate as a tax – he denied it in unequivocal terms to George Stephanopolous. Now they will have no choice. President Obama and Congressional Democrats just became the owners of a considerable tax hike – what one of my colleagues is calling “The most deceptive tax increase in American history.” The Obama campaign will frame it as a tax on “the rich” — since you only pay the tax if you are a taxpayer who is capable of purchasing coverage but chose not to purchase it. But look for Republicans to start referring to the “Obamacare Tax.” This is one way in which this can redound to the benefit of Republicans: everyone from Romney on down can now press his opponent with the question, “Are you for the Obamacare Tax or against it?” 

5. Finally, and perhaps most importantly, I think this places the central issue of the election very clearly in front of the voters: Do you believe that the government ought to have more power over your life, or do you think it should have less? The Supreme Court is not going to save us against our own poor electoral decisions, if the people we elect go on to pass foolish taxes. Conservatives cannot rely on the Supreme Court as a backstop. So I think you will see the Tea Party movement revived, less focused on internecine battles and more focused again on the fundamental questions of the role of government.

The conservative revisionists suggest that Roberts is setting up the fools and crooks who pushed this monstrosity on us for a huge fall. How?

Roberts is telling conservatives:

'If you are to win, you must win in the political arena. You must not make the error the liberals have made in the past half-century, by fighting your fights in the courts (on abortion, school prayer, affirmative action, etc) and neglecting to build the political power to prevail legislatively. I am providing you with the framework to win this fight. Obamacare is a tax, a massive tax, on the middle class. It is not 'regulation of interstate commerce' or any such nonsense. Democrats must be forced to defend it at the polls. As a tax, rather than a regulation, it can be destroyed with 51 votes in the Senate, not 60. The way to beat Obamacare is not to go the easy way and get the courts to do your work for you. That's a half-solution. The way to beat Obamacare is to end the political careers of the gangsters who created it. I've given you some useful tools.'

Gary Hamilton likens Roberts' opinion to playing bridge:

Ever played Bridge? 

You bid the hand in such a way that certain things are communicated to your partner, and then you trust that your partner will understand the bidding and play correctly. During play, you play your cards both in response to what the opposition plays and in such a way as to take advantage of your partner’s position. 

Bridge is a complex game with a significant trust component. 

I believe Roberts is playing Bridge here. 

I’m guessing (yeah, I said I’m trying not to speculate) that his reading of the liberal justices was such that if he sided with the manifest majority, and struck down only the funding vehicle, the law would survive and be shored up through other, more devious measures.
By correctly classifying the funding vehicle as a tax, he has played a card that exposes the liberal reality and invites a response from Congress as well as the electorate. 

By acknowledging that the *electorate* is responsible for its political choices and therefore its politicians and therefore, ultimately, its laws, and by making it clear that bad law and bad policy may not, in fact, violate the Constitution, since the Constitution was not written with the explicit injunction that “legislators may not write stupid laws,” he plays the card that clarifies the path to eliminating not only the heinous Health Care Sabotage machine, but also the fools and crooks who gave it to us. 

Roberts is looking across the table at us now. 

He has to trust that the electorate and Congress will look at the cards and play correctly to win the hand and ultimately the game. He can’t signal us with a kick under the table or tap out a strategy with his pen or convey in any fashion what he meant by his play. 

Play now moves to us. 

He has given us clarity: Obama lies, taxes rise. Repeat that loudly. 

He has stated the uncomfortable truth: SCOTUS can’t save you if you insist on voting in stupid legislators and evil presidents; your salvation lies entirely within your own hands. 

It must have been tempting to side with the other conservative justices and strike down the vulnerable parts of the law, but that just allows the now injured monstrosity to limp along, doing massive damage as it tramples the economic structure of the nation. 

In Bridge, there’s a play error known as “trumping your partner” where you play a card in “trumps” to win a trick that your partner would have won anyway because your opponents have no higher value in the suit he played. It’s an error because you give up a play that would have won a later trick with that same card. It can make the difference in winning the hand. 

Let us not trump the Roberts decision with a bunch of emotional chaff that hands the ultimate victory to the fools and crooks. 

Our play is simple, really: change out the president, change out the bulk of the Senate, increase the House majority. Hey, I said simple, not easy. 

With the right legislators in the chairs and the right president in the Oval, the whole damned Health Care Sabotage law can be expunged. That, and a whole host of other fires this administration has started can be extinguished. 

SCOTUS can’t save us from stupid. That’s our job.

I'd still probably buy the tar, but the revisionists may be right. This may be a pyrrhic victory for Obama.

Roberts may be playing a deep game.