Chief justice proves that he’s a wolf in ‘umpire’s’ clothing

“Judges are like umpires. Umpires don’t make the rules; they apply them.” — John Roberts, during his Senate confirmation hearing as chief justice of the Supreme Court.

To understand the full magnitude of Chief Justice John Roberts’ plundering of the ideals of federalism, limited government and judicial restraint, you can’t simply look at Robert’s contorted opinion in Thursday’s Obamacare ruling.

For the full view of his judicial perfidy, you have to consider the Roberts-authored opinion in the Obamacare case alongside the Roberts-endorsed opinion from earlier in the week where the court largely gutted an Arizona law cracking down on illegal immigration. Together, the picture of full-frontal judicial arrogance emerges. To the horror of conservatives, it is the face of John Roberts.

During his confirmation to the high court, Roberts famously described the role of Supreme Court Justice as “umpire” — a dispassionate arbiter of what the Constitution required, as opposed to a maker of laws.

After this week, those words are mockery. Roberts doesn’t seem to have any problem simply making it up as he goes.

In the Arizona case, the majority of the Supreme Court, and Roberts with them, struck down three of four elements of that state’s illegal-immigration crackdown, including provisions that made it a “crime for undocumented immigrants to reside in the state ... and a provision that would have given police the power to arrest those suspected of residing in the country illegally,” as one news outlet described it.

Shedding the blue shirt and mask of an umpire, Roberts and his black-robed brethren jumped in the game of lawmaking, interposing their views over the will of the people of Arizona.

Never mind that, in enacting the immigration laws, the state of Arizona was asserting an expansive authority under the Constitution — that of the states to protect the health and safety of its citizens, in this case from the runaway crisis of illegal immigration. John Roberts and his “umpires” had a different view of the matter.

Thursday, of course, the Roberts Court veered further off the path of sensible judicial construction by using cataclysmically absurd logic to uphold Obamacare. Roberts crawled into judicial bed with the likes of Ruth Bader Ginsburg, decreeing that the federal government’s broad power to tax was all the constitutional cover that was needed for the Obama-Pelosi-Reed healthcare mandate to pass constitutional muster.

Recall that Obamacare requires citizens to buy health insurance or, as “penalty,” pay a tax. From that point, Roberts’ argument goes like this: Congress has broad power to tax; the individual mandate is only a mandate insofar as those who don’t follow it have to pay a tax; ergo, the individual mandate is constitutional because it is no mandate at all, but rather a constitutional exercise of Congress’ power to tax those who don’t follow the mandate.

Key to Roberts opinion is that the tax is in fact a tax, and not a penalty. It is, in the ivory tower of John Roberts, something of a Plan B for those who don’t want to follow the healthcare mandate.

Right. Like going to jail is a Plan B for those who decide not to follow criminal statutes.

But here’s where it gets really outrageous. Congress itself articulated in the plain language of Obamacare that Roberts’ so-called tax was in fact a penalty, not a tax. Even Roberts himself admits this.

But for Roberts and his fellow “umpires,” just cuz Congress said it wasn’t a tax, doesn’t mean that Congress meant it. Roberts argued it is the court’s duty to use “every reasonable construction ... in order to save a statute from unconstitutionality.”

In this case, that means ignoring what Congress actually said in favor of what the high court believes Congress meant.

Never mind all that umpire talk. In one outrageous fit of apostasy, Chief Justice John Roberts affirmed the largest expansion of government power in the history of humankind on hair-splitting logic that arrogantly asserts that Congress and the president didn’t even mean what they said.

Worse, Roberts’ warped reasoning opened a new door to federal coercion: Do what Uncle Sam says, or pay a tax. You will find the limit to that expansive, statist doctrine somewhere near the end of a rainbow.

Viewed alongside the Roberts-backed Arizona decision, there is no way to sugarcoat it for the man who was once viewed as the safety net for limited government and federalism. Because under that umpire’s costume is a judicial wolf — another Supreme Court jurist perfectly content to make it up as he goes, embracing laws that he likes, discarding those he doesn’t, while making a mockery of the Constitution when it suits his point of view.


Josh Penry is a former minority leader of the Colorado Senate. He graduated from Grand Junction High School and Mesa State College.


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Don’t ever forget that Roberts is your guy. Isn’t it possible that he ruled the way he did because the Constitution told him to do so?

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