Did Justice Roberts Help Romney and Provide a Path to Repeal ObamaCare?

Over at Red State, Erick Ericson theorizes that Chief Justice John Roberts joined the majority opinion as a way to put ObamaCare back into the hands of the political branches to decide the law’s fate:

The Democrats have been saying for a while that individual pieces of Obamacare are quite popular. With John Roberts’ opinion, the repeal fight takes place on GOP turf, not Democrat turf. The all or nothing repeal has always been better ground for the GOP and now John Roberts has forced everyone onto that ground. Oh, and as I mentioned earlier, because John Roberts concluded it [the individual mandate] was a tax, the Democrats cannot filibuster its repeal because of the same reconciliation procedure the Democrats used to pass it.

It seems very, very clear to me in reviewing John Roberts’ decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.

Our own Doug Mataconis said he “would not be surprised to see it be a 6-3 decision” way back in April for the following reason:

Ordinarily, the most senior Justice in the majority gets to decide who writes the majority opinion. However, if the Chief Justice is in the majority he gets to make that decision. If Kennedy ends up voting to uphold the mandate then I could see Chief Justice Roberts joining him so that he can write the opinion himself and make the precedential value of the decision as limited as possible.

Erick Erickson also mentioned on his radio program that many conservatives and libertarians who aren’t thrilled with Romney as the nominee will put aside their objections and vote for him if it means repealing ObamaCare.

I hate to say it but I think Erickson has a point. ObamaCare being upheld is a game changer. Prior to this decision that was supposed to strike down all or part of ObamaCare, I was absolutely certain that I would enthusiastically vote for the Libertarian nominee Gary Johnson rather than settle for the lesser of the two evils. With ObamaCare being upheld, now I have to say I’m not so sure. I’m not normally a single issue voter but if ObamaCare isn’t stopped and soon, we will be stuck with it for at least a generation.

The problem is though, it might already be too late. Several things have to happen just right. First Romney must be elected and the GOP must take control of the Senate and hold the House. Second, we have to trust that Romney and the Republicans in congress will actually follow through. We’ve been disappointed before.

  • http://www.belowthebeltway.com Doug Mataconis

    I don’t know Stephen, I tend to think that repealing the Affordable Care Act is going to be far more difficult than Erickson seems to think:


  • http://jdkolassa.net Jeremy

    I disagree strenously.

    Let’s not forget that it was a conservative justice, appointed by a Republican president, who upheld Obamacare. And now conservatives like Erickson want libertarians to “hold their nose” and join him in voting for the Republican who created the Obamacare prototype.

    What is this, 1984?

    I don’t trust the Republicans and I don’t trust conservatives on this. This is even more of a reason to vote for Johnson and not Romney.

    My god, I sound like a Paulbot now…

  • http://www.thelibertypapers.org/ Stephen Littau

    Jeremy, you sound a lot like my conscience : ) (you would be the angel on the one shoulder, Erickson would be the devil saying “come on, you can trust the Republican this time; trust me”)

    For me it’s a decision between principle and pragmatism. I don’t want to support a big government conservative who wants to drop bombs on Iran on behalf of Israel but I don’t want to support Obama’s criminal enterprise either. ObamaCare will be a disaster though. I can support Johnson and respect myself in the morning for staying true to my principles or I can support Romney and he *might* repeal ObamaCare *if* he has the support of both houses of congress.

    At the end of the day, I probably will support Johnson because he’s the best person for the job and he aligns most with my principles BUT the temptation to stray is much stronger for me than yesterday. None of this would be a big deal if I didn’t live in a swing state (Colorado).

  • Jeff Molby

    BUT the temptation to stray is much stronger for me than yesterday

    There’s always an issue or two that the major parties use to pry voters from minor parties. That’s one of the ways they keep minor parties from gaining momentum.

    I was their mark in 2004. Sounds like they have your number this year. Don’t do it. Unless libertarianism spreads, we’re destined to have national healthcare eventually anyway. In the grand scheme of things, does it really make much difference whether it happens in 1993, 2014, or 2030? The ideological battle is far more important than any single election between the big parties.

  • http://www.thelibertypapers.org/ Stephen Littau

    I appreciate your remarks, Jeff. Now that I have had some time to get off the ledge following the ObamaCare ruling (so to speak), I’m very confident that I will not go back to the dark side and vote for Romney. Like you said, nationalized healthcare will come sooner or later whether we like it or not. The reason we are faced with ObamaCare now is because the Republicans did not offer an alternative free market policy when they ran things. If they end up running things again, it will probably be ObamaCare Lite anyway.