Chief Justice Roberts Wouldn't Eat Their Brocolli

Chief Justice Roberts gave the four Democrats on the Supreme Court the crucial fifth vote to keep Obamacare from being unconstitutional in NFIB v. Sebelius

And yet you would have to call it a fractured majority:

"Justice Ginsburg, with whom Justice Sotomayor joins, and with whom Justice Breyer and Justice Kagan join as to Parts I, II, III, and IV, concurring in part, concurring in the judgment in part, and dissenting in part."

Ginsburg and company had a strange way of thanking the Chief Justice for his vote, calling him rigid, crabbed, warranting disapprobation, homeless, plowing, redolent, underwhelming, unpausing, disserving, disquieting, puzzling, unsatisfying, yet mightily striving, short on substance, and relying on newly minted doctrines, novel constraints, inapt analogies, spurious complaints, formalistic distinctions, parading broccoli horribles, hypothetical and unreal possibilities, and specious logic.

"According to The Chief Justice, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive."

"The Chief Justice's crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress' efforts to regulate the national economy in the interest of those who labor to sustain it."

"The Chief Justice relies on a newly minted constitutional doctrine."

"The Chief Justice's novel constraint on Congress' commerce power gains no force from our precedent and for that reason alone warrants disapprobation."

"The Chief Justice draws an analogy to the car market. An individual 'is not "active in the car market,"' the Chief Justice observes, simply because he or she may someday buy a car. The analogy is inapt."

"The Chief Justice also calls the minimum coverage provision an illegitimate effort to make young, healthy individuals subsidize insurance premiums paid by the less hale and hardy. This complaint, too, is spurious."

"The Chief Justice's limitation of the commerce power to the regulation of those actively engaged in commerce finds no home in the text of the Constitution or our decisions."

"The Chief Justice plows ahead with his formalistic distinction between those who are 'active in commerce,' and those who are not."

"At bottom, The Chief Justice's and the joint dissenters' 'view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that [is] more redolent of Due Process Clause arguments.'"

"As an example of the type of regulation he fears, The Chief Justice cites a Government mandate to purchase green vegetables. One could call this concern 'the broccoli horrible.'"

"Yet no one would offer the 'hypothetical and unreal possibilit[y],' of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate."

"The Chief Justice's argument is short on substance."

"The Chief Justice's reliance on cases in which this Court has affirmed Congress' 'broad authority to enact federal legislation' under the Necessary and Proper Clause is underwhelming.

"Nor does The Chief Justice pause to explain why the power to direct either the purchase of health insurance or, alternatively, the payment of a penalty collectible as a tax is more far-reaching than other implied powers this Court has found meet under the Necessary and Proper Clause."

"In failing to explain why the individual mandate threatens our constitutional order, The Chief Justice disserves future courts."

"In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples' representatives in both the States and the Federal Government. The Chief Justice's Commerce Clause opinion, and even more so the joint dissenters' reasoning bear a disquieting resemblance to those long-overruled decisions."

"Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend “for the . . . general Welfare of the United States.” I concur in that determination, which makes The Chief Justice's Commerce Clause essay all the more puzzling. Why should The Chief Justice strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? I find no satisfying response to that question in his opinion."

Really, it reads like the Democratic Justices were downright angry to get Chief Justice Roberts's vote upholding Obamacare. And to what did the Chief Justice owe this hysterical harangue of the hinnies? He ate the meat and potatoes of their argument but wouldn't eat their broccoli.

Here's how you write a concurrence:

"The discussion of the commerce clause in the Chief Justice's opinion and the dissenting opinions is not necessary to today's decision upholding the ACA individual mandate under the taxing power. It is mere dicta unless the Court finds a case for these new ideas of what constitutes commerce to apply."

Now, if I'd have been the Chief Justice, I would have highlighted the phrases in the circulation draft, dropped by Justice Ginsburg's office, and plopped the thing on her desk with the comment, "I thought you wanted my vote." Then I would have walked out.

We now have a very interesting legal situation developing as many Democrats continue to maintain that the individual mandate is not a tax. Is that grounds to go back to the Supreme Court for a rehearing?