In 2005, I was asked to serve as the Chairman of Nebraskans for Judge Roberts, and I readily accepted.

The first goal of the group was to promote an “up or down” vote on Judge John Roberts by the United States Senate (and particularly Sen. Ben Nelson).

The second goal was to see that this vote was based upon Roberts’ qualifications, and to deter the type of character assassination that had occurred in connection with some prior judicial confirmations.

It is, perhaps, ironic that Nelson, who later was to be pilloried for casting the deciding vote in favor of the Affordable Care Act (“Obamacare”), did cast his vote in favor of Chief Justice Roberts following a remarkably civil Senate hearing process in which Roberts vowed to act as an impartial “umpire” and never assume the role of a player in the law-making arena.

It is much more ironic, however, that Roberts will go down in history not as the disinterested umpire he promised to be, or the advocate of judicial restraint his supporters believed him to be, but rather as the one who ushered in the ultimate transfer of limitless power to the federal government.

Roberts’ single-handed accomplishment of this feat is breathtaking to millions of Americans — as well as deeply disappointing.

Roberts’ written opinion upholding the Affordable Care Act began by announcing the legal conclusion that most observers believed would be the ultimate result of the case: “The federal government does not have the power to order people to buy health insurance.” He then went on to state what should have been the framework for his analysis: “The framers created a federal government of limited powers, and assigned to this court the duty of enforcing those limits.” This “limited power,” however, apparently now is unconstrained entirely when re-characterized as a “tax.”

The bottom line is that the Roberts opinion simply is unsupportable in terms of its legal reasoning and adherence to longstanding rules of constitutional interpretation or construction. I am quite familiar with the rule of construction, relied upon by the Chief Justice in his opinion, which provides that a constitutionally valid (or “saving”) interpretation of a challenged statute must be adopted by a court if “fairly possible.” I have urged adherence to this exact rule in legal arguments on a number of occasions in defense of state statutes, including in the U.S. Supreme Court.

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As the four dissenting Justices in the Affordable Care Act decision pointed out, however, the opinion by Roberts does not adhere to the “fairly possible” rule of construction because “to say that the individual mandate (in the health care law) imposes a tax is not to merely interpret the statute but to rewrite it.”

Pointing out the clear distinction in the court’s prior rulings between a “tax” and a “penalty,” the four dissenters concluded, “We cannot rewrite the statute to be what it is not.” In other words, the rule does not allow a court to rewrite a statute in order to save it. To do so is not a matter of fair interpretation, but rather judicial legislating.

The controlling opinion by Roberts, therefore, disregards the cardinal principal that a court is to ascertain the intent of the legislative body (which in this case was manifestly to create a penalty for not purchasing a product), and the even more fundamental rule that a court is not to rewrite a statute (even to save it from invalidation) because to do so is a usurpation of the legislative function. As a result, the controlling opinion engages in feigned judicial restraint while in reality doing the exact opposite.

Some say the approach taken in the Roberts opinion was necessary to preserve the “legitimacy” of the Supreme Court. Indeed, Roberts already is reaping accolades and praise for his actions in some elite circles. However, the long-term prestige and respect for the U.S. Supreme Court by the people ultimately is more dependent upon adherence to the rule of law and respect by the court for the limitations on government power enshrined in the Constitution than on the applause of Washington elites.

The Roberts opinion has itself placed the legitimacy of the court, as well as our freedom as Americans, in great jeopardy. As is stated at the opening of each session of the Supreme Court, may “God save the United States and this honorable Court.”

Steve Graz served as Nebraska’s chief deputy attorney general for more than 11 years. He currently is a partner at the Husch Blackwell legal firm and also is the legal counsel to the Nebraska Republican Party. The views expressed in this column are personal and not those of his firm or any group.


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