But a lot of those same observers were shocked on June 28, when Chief Justice John Roberts, rejecting the Commerce Clause argument, agreed with Verrilli that the mandate simultaneously was and was not a tax, and that therefore Obamacare would stand. Roberts joined the court's four liberal justices, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, who seemed prepared to uphold Obamacare under any circumstances.
Roberts' sleight of hand drove his conservative colleagues nuts. "The government and those who support its position on this point make the remarkable argument that (the mandate) is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes," wrote dissenters Alito, Antonin Scalia, Anthony Kennedy and Clarence Thomas. "That carries verbal wizardry too far, deep into the forbidden land of the sophists."
After the ruling, Obamacare opponents pointed out the thousands of times the president and Democratic lawmakers had contended that the mandate penalty was not -- repeat, not -- a tax. But it no longer mattered. "Call it what you will," said former House Speaker Nancy Pelosi.
Outside the court, the conservatives who thought they knew Roberts seemed baffled. "For whatever reason, and you'll have to ask Justice Roberts, he rewrote the statute," said Mike Carvin, who argued against Obamacare in the case. "I'm glad he rewrote the statute rather than the Constitution, but none of it can pass rational scrutiny."
Maybe rational scrutiny isn't what is called for. If a person wants to do something badly enough, he'll come up with a reason for doing it. John Roberts, apparently, wanted to uphold Obamacare, even if it meant venturing deep into the forbidden land of the sophists.
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