HUGH HEWITT, HOST: What is the best argument for how he decided these two cases? In the latter of them, he said this Court is not a legislature. What, Ted Cruz, is the best argument in defense of both decisions?
SEN. TED CRUZ: Well, look. So I’m trying to understand. You’re asking me to defend Roberts’ position in both cases, or the majorities’?
HEWITT: Yes, Roberts’ position in both cases. That means to be with the majority in upholding Obamacare by inferring statutory construction the way he did, and to be with the dissent on the Constitutional issue in the marriage cases?
CRUZ: Listen, with regard to the marriage case, I think Chief Justice Roberts’ dissent was spot on. He’s exactly right, that what the Court did is it put its own policy judgments ahead of the policy judgments of the elected legislatures. From the beginning of our country, the Constitutional has left questions of marriage to the states. If you want to change the marriage laws in your state, the way to do is convince your fellow citizens to do so. And so on that, I think he was spot on. On the Obamacare decision, both this decision and then the decision three years ago, Chief Justice Roberts in both instances wrote very careful, lawyerly decisions. But both you and I have known Chief Justice Roberts for decades. He is a friend, he was widely considered the finest Supreme Court advocate of his generation. In both instances, what the Court did was it rewrote the statute. Now let’s talk about the decision three years ago. Three years ago, there are some good aspects of the Supreme Court’s opinion. Number one, with regard to the Commerce Clause, the Supreme Court concluded that the individual mandate was unconstitutional under the Commerce Clause. That was important, jurisprudentially. Number two, the Supreme Court, three years ago, struck down a portion of Obamacare, which was the forced expansion of Medicaid under the Spending Clause. That was a major positive, conservative jurisprudential ruling. Now it has been publicly reported, and I have no reason to doubt, that Roberts initially voted to strike the entirety of the statute down three years ago, and then he flipped his vote somewhere midway through the opinion writing process. And what he did was one simple sleight of hand, one bit of ledger domain, which is he transferred a penalty into a tax. And the individual mandate repeatedly in the statute is described as a penalty. If it’s a penalty, it was unconstitutional, illegal, and would be struck down. And he simply said we’re going to make it a tax. And he deliberately went around the fact that Congress repeatedly didn’t use the word tax, because there are political consequences to raising taxes, and he went around the fact that President Obama explicitly told the American people this is not a tax. Once he used the sleight of hand to transform it into a tax, then under the tax case law, it was fairly straightforward to uphold it. But he’s a good enough lawyer, he knew exactly what he was doing.
HEWITT: And what’s the best argument that can be made for what he did?
CRUZ: So I believe the reason Chief Justice Roberts did that is that he was trying to preserve the independence of the Court. He was trying to keep the Court out of a political mess. I think he believed he was behaving like John Marshall, and wisely extricating the Court. I think he also justified it that the jurisprudential rulings on the Commerce Clause and Spending Clause were positive. But I think he was profoundly mistaken, and I think the irony is both that decision and last week’s decision, which he basically did the same thing all over again, will go down as some of the most political decisions in the Court’s history. And sadly, John Roberts at his confirmation hearing, he correctly analogized the role of a justice to that of an umpire calling balls and strikes. Well, he stopped serving as an umpire, and he instead suited up and became a player on one of the teams. And he put on an Obama jersey. And that is disappointing for an individual and a judge I respect so much to see him acting contrary to his judicial role.