Constitutional curve ball

For politicos, the Obamacare decision was something of a “Where were you when . . . ?” moment.  Surprisingly, Chief Justice John Roberts–not Justice Anthony Kennedy–was among the upholding majority.  And the mischievous wording of Robert’s majority opinion memorably made the breakneck news cycle stop for just a couple minutes as reporters rushed to divine the arcane document on live television.   CNN even embarrassed itself (and FOX less so) with a Dewey defeats Truman blunder, but I doubt it will be remembered as long as the original.

Throughout the day I caught a few whiffs of this idea that Roberts’s institutionalist inclination was coming through.  That is, he voted the way he did to spare the Supreme Court from allegations it had succumbed to an intractable polarization along party lines .  It was batted around on NBC’s live coverage, and resurfaced for the evening’s All Things Considered.  Hard liberal Robert Reich presciently cited this institutional loyalty a day in advance.  Supposedly, John Roberts is not even the first chief justice to spike his vote in the hope of saving the court’s influence.

If this protective phenomenon of institutionalism is real, isn’t it self-defeating in practice?  It would seem the court is compromising its deliberative process in order to not appear compromised.

Yet, short of Justice Roberts being interrogated with truth serum, the institutional motive will probably remain just speculation.  There’s been profuse coverage and the decision’s dissection will only become more detailed and complete over time.  I cannot pretend to be an expert on jurisprudence, so I trust those who say Roberts had good reason for pegging the mandate as a tax.  Indeed, it may have been more a pebble in Democrats’ shoes than a charitable move.

It seems at this point that the GOP has been invigorated considerably by the shock that for some is also accompanied by a sense of betrayal.  I’m surprised that there are still holdouts coming out of the woodwork to support Governor Romney.  It’s like those Japanese soldiers who only surrendered to American forces in the age of disco.  What a trauma that must have been.

The response on the Right, including over one million spontaneous dollars taken in by Romney’s campaign today, is encouraging for those who hope to roll back the collectivist tide.  It seems conservatives have their own way of going “Forward.”