I certainly understand Mr. Oliver’s point, but I’m afraid he has misunderstood mine. Do I think that John Roberts has a burning desire to impose a “radical social agenda” on the country? No. But his unprecedented expansion of Congress’s power “to lay and collect Taxes” has given Congress a new tool to do just that.
Mr. Oliver writes that Roberts’ opinion is “very narrow,” but the implications of the opinion are not. And it’s hardly a defense of Roberts to say that “he saw the writing on the wall that some form of universal health care is inevitable” and ruled as he did to avoid “damag[ing] the legitimacy of the Supreme Court, his Supreme Court in particular.” Notice what’s missing? Any concern for the constitutionality of the law itself.
Mr. Oliver is convinced that Chief Justice Roberts will do the right thing on “gay marriage”; Tom Piatak has already explained why that is by no means certain. But let’s take it a step further: If Roberts ruled as he did yesterday because he “saw the writing on the wall” and wanted to preserve the “legitimacy” of “his Supreme Court,” why does Mr. Oliver think that such concerns won’t apply in the case of “gay marriage”?
A footnote: Mr. Oliver sees “gay marriage” coming before the Court in a case involving the Equal Protection Clause, but the first cases filed in federal court, and thus the first cases likely to come to the Court, invoked the Full Faith and Credit Clause. That’s why I have argued—as far back as 2004—that there is a strong possibility that the Court will rule in favor of “gay marriage,” and that, if it does, it won’t be surprising to see at least one “conservative” justice join in the majority. If I had to predict which one, I’d choose the man who today was quoted as saying that he hopes that “his Supreme Court” will be remembered for doing “our job according to the Constitution, of protecting equal justice under the law.”