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Chief Justice Roberts is playing the long game

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Chief Justice Roberts is playing the long game
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"The United States of America, July 4, 1776 to June 28, 2012. May she rest in peace. I went to bed last night a free man and woke up this morning a slave to the state. Ronald Reagan was right. We must now tell our children of the time when we were free."


So wrote a distraught author of a comment on the conservative blog, immediately after the Supreme Court's upholding of the Affordable Care Act was announced.

But a funny thing happened as the day wore on, Department of Homeland Security slavemasters failed to show up on America's street corners -- and, most important, analysts on the right and left had the chance to consider the opinion with more care.

Conservative George Will caught the shift early, as his column (which he sent early Thursday afternoon) shows. Erick Erickson at the conservative saw it as well:

"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," Erickson wrote.

Not long after that, Ezra Klein joined the chorus. Liberal Klein writes the Washington Post's Wonkblog, often is a guest on Rachel Maddow's MSNBC show and substitutes for Maddow as a host now and then. Here's part of his take:

"By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach," Klein wrote.

"No one can accuse Roberts of ruling as a movement conservative. He's made himself bulletproof against insinuations that he's animated by party allegiances.

"But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court -- namely, imposing limits on federal power. ... And he did it while rendering a decision that Democrats are applauding."

Klein's referring to the fact that Roberts and four other justices solidly affirmed a notion that the Obama administration had ridiculed and a majority of court-watchers at first had rejected: the notion that the Constitution's Commerce Clause justified the "individual mandate."

That's the Affordable Care Act's core element, the requirement that every adult American must secure health insurance.

No, the Commerce Clause doesn't justify any such thing, a clear majority on the Supreme Court now agree. The court seldom imposes such limits, so when it does, the effects tend to be felt for decades.

True, Roberts still found justification for the individual mandate through Congress' power to tax. But that's a much narrower power and one invoked much less often than the Commerce Clause to justify "big government" policies.

Then there's the fact that thanks to Roberts' opinion, Democrats no longer can point to "conservative judicial activism" as a reason to vote for Obama.

And then there's the fact that the decision forces Republicans to resort to Congress, not the courts, to repeal the act -- Congress, where repeal would be decisive and accepted in a way a 5-4 decision never would be ...

Klein quotes Randy Barnett, a libertarian legal scholar who helped develop the Commerce Clause attack. "For those of us who oppose the Affordable Care Act as a policy matter, this is a bad day," Barnett said.

"For those of us in this fight to preserve the limits of constitutional government, this is not a bad day."

That makes sense, and it adds to the portrait of a chief justice who's playing the long game.

This guest editorial originally appeared in the Grand Forks Herald, which is owned by Forum Communications Company.