Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court.
Roberts seems determined that there be no recurrence with Obamacare.
Hence his straining in his Obamacare ruling to avoid a similar result — a 5-4 decision split along ideological lines that might be perceived as partisan and political.
National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades.
Roberts' concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.
How to reconcile the two imperatives — one philosophical and the other institutional?
Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation.
At the same time the Commerce Clause is reined in.
By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.
Law upheld. Supreme Court's reputation for neutrality maintained. Commerce Clause contained. Constitutional principle of enumerated powers reaffirmed.
That's not how I would have ruled.
I think the "mandate is merely a tax" argument is a dodge, and a flimsy one at that. (The "tax" is obviously punitive, regulatory and intended to compel.)
Perhaps that's not how Roberts would have ruled had he been just an associate justice and not the chief.
But that's how he did rule.
Obamacare is now essentially upheld. There's only one way it can be overturned.
The same way it was passed — elect a new president and a new Congress.
That's undoubtedly what Roberts is saying:
Your job, not mine. I won't make it easy for you.
Krauthammer's email is lett...@charleskrauthammer.com.