The first dividend of the Roberts ObamaCare opinion has now been paid: yesterday’s Supreme Court ruling, by a 6/2 margin (including BREYER in the 6), that the Supremes must defer to the states when states adopt laws that ban or limit Affirmative Action plans or programs. Yes, the Supremes did not go all the way and rule that AA plans are unconstitutional, it only ruled that anti-AA plans are not unconstitutional. For example, Texas’s de facto AA plan remains legal (for now) – you know, the one that the left adores, because it allows the state university to continue to discriminate against non-minority applicants by admitting minority students who graduate in the top 10% of a high school whose top 10% does not have very high test scores, while it rejects non-minority students with much higher test scores because they fell outside the top 10% of a high school whose top 10% has extraordinarily high test scores. What the current case implies is that it would be perfectly OK, constitutionally speaking, if the Texas legislature were to reverse itself and eliminate the 10% rule.
As this site has often opined, our Chief Justice plays the long game. By resisting the temptation to rule ObamaCare unconstitutional, and by finding a somewhat tortured excuse to defer to the will of Congress, Chief Justice Roberts gambled that the country would survive the incompetence, weakness, and far-left partisanship of the Obama regime and, having survived them, would be the better and stronger for having a Supreme Court that had demonstrated both an iron will in resisting political temptation and a solid new precedent for the constitutional, legal, and political primacy of legislative acts – be they the acts of our national Congress or (as in yesterday’s ruling) those of a state. For that matter, the ObamaCare ruling could conceivably be a part of both the legal and the political-and-moral support for an eventual challenge to President Obama’s wanton disregard for the will of Congress when he issues Executive Orders and federal regulations that go far beyond – or directly contradict – the plain terms of federal laws adopted by Congress.
I am not at all certain that we will survive the Obama years as anything but a pathetic remnant of the great country we once were, but we now have only 2 ½ years to go. Meanwhile, I have my doubts as to whether Roberts could have mustered the support of both Justice Kennedy and Justice Breyer in yesterday’s ruling had Roberts not led the Court to the decision it reached in the ObamaCare case. I am not yet ready to declare myself a Roberts fan, but I am getting there.