Randy Barnett here (video) and here (excerpts).
For two years, the nation was transfixed by the legal challenge to Obamacare. A genuine popular constitutionalist uprising had set the stage for a renewal of our Republican constitution. Tea Party activists – and just plain old Republicans – looked to the Supreme Court to uphold a limit on the growth of federal power. True, Democrats and the Left intelligentia would have screamed bloody murder – as they did after the 3 days of oral argument showed there were five votes for our constitutional theory. But, had the Court invalidated the law, polls show it would have enjoyed the support of a majority of the American people.
And it would have taught the American people an invaluable lesson about their Constitution and the courts. No Americans knew about the Gun Free School Zone Act that the Rehnquist Court had invalidated in 1995. Most Americans were clueless about the civil cause of action for gender-motivated violence that the Court invalidated in 2000. Only a minority of Americans truly cared about the use of medical marijuana that the Court had failed to protect in 2005.
But virtually everyone who paid any attention to public affairs was aware of our challenge to Obamacare. Had it been invalidated and the decision remanded to the now-divided Congress to devise a new and perhaps even genuine reform of the existing regulations of health insurance, it would have shown the American people that there were indeed limits on the power of Congress.
Perhaps more importantly, it would have shown the Tea Party constitutionalists that their efforts had finally paid off. They had put their faith in the Constitution and the courts, and that faith was rewarded. But instead they got a hard kick in their teeth. And the effect of that kick was felt this week.
Listen again to the words of John Roberts to the Tea Party activists who were counting on him: “it is not our job to protect the people from the consequences of their political choices.” What else did that mean to them if not: “it is not our job to uphold the limits on federal power”? Go away from the court house. Go away from the judges. Go away from the Constitution itself and fight this out among yourselves.
Law exists, in part, to direct the natural urge for self-preservation and self-defense into peaceful channels. The Constitution exists to provide the law that governs those who govern us. And the judiciary was created, in part, to hold the government within its just powers and, by so doing, avoid the Hobbesian war of all against all.
But at the very moment he was called upon to teach the American people of the value of their republican Constitution, Chief Justice Roberts asserted the judicial restraint of the democratic constitution and turned them away. And that, my friends, was the end of our constitutional moment. That was the beginning of the end of constitutional conservatism as a political movement. And it kindled the resentment and populism that led to Donald Trump….
Similarly, Ilya Shapiro, here:
[If] I have to point to a moment that spawned the current annus horribilis, it would have to be John Roberts’s vindication of Obamacare on June 28, 2012. …
Not because his ruling in NFIB v. Sebelius—and last year in King v. Burwell, when the die had already been cast—allowed a hugely unpopular piece of legislation to survive and corrode our health-care system and economy. But because Roberts recognized that the Affordable Care Act was unconstitutional yet still saved it out of a misbegotten devotion to judicial restraint—under the guise of deferring to “the people.”
But by refusing to follow his own logic, to go where even Justice Kennedy full-throatedly went—I was in the courtroom to hear Kennedy passionately summarize a dissent that would’ve struck down the entire law—Roberts increased cynicism and anger at play-by-the-rules conservatives and decreased respect for institutions across the board.
The man’s twistifications drove the constitutionalist Tea Partiers into the arms of the populists—or made it easy for their populist instincts to “trump” their constitutional ones (pun unintended, but fitting). Why bother with the Constitution? Even when you’re right, you lose.
Orin Kerr has an extensive counterpoint here.
Posted at 6:07 AM