This is a RUSH transcript from "The O'Reilly Factor," July 2, 2012. This copy may not be in its final form and may be updated.
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O'REILLY: "Impact Segment" tonight, let's get reaction to my "Talking Points" memo. Charles Krauthammer joins us from Washington. So where am I going wrong here, Charles?
CHARLES KRAUTHAMMER, FOX NEWS CONTRIBUTOR: Well, you left out one factor in Roberts' decision. I agree with you that part of the reason he wanted to uphold the law by all means and he went looking for this relatively flimsy dodge was that he is a conservative and conservatives do not like to overturn major pieces of legislation. That is true.
But, if that were the case, how come that didn't apply to the four other conservatives on the court? The difference is that Roberts is a Chief Justice. And I think what you're overlooking is the sense that he has of his institutional duties as the Chief Justice of the United States. He sees part of his role or a major part as maintaining his prestige and standing. And he thought, mistakenly in my view, but he thought that by overruling such a sweeping piece of legislation that had been discussed in the Congress for a year and a half, and duly passed, he would be exposing the court to the charge from Democrats -- we already heard intimations of it from the President and from, of course, the mainstream media -- that the court was acting politically in a partisan way and they would back to the Gore versus Bush decision in 2000 where the court split ideologically and say this was a partisan act.
O'REILLY: Ok well let me stop you there.
KRAUTHAMMER: I think he was intimidated.
O'REILLY: Ok. There is the word. You must be -- you must have STP or is that ESP. You must have. I was just going to say --
KRAUTHAMMER: Traumatic -- post-traumatic O'Reilly syndrome.
O'REILLY: Right. A lot of people have that.
Now, I was just going to say he's intimidated. He was intimidated because he's not looking at the case, all right? He is looking at the impact of the case. And you can't do that. You can't do that when you're -- whether you're the Chief Justice or one of the other judges. You've got to rule on what the Founding Fathers intent was in the document. Not what it's going to play out in -- on the liberal press. Come on.
KRAUTHAMMER: Well, that's precisely where I think he went wrong. And the irony is this. He tried to give a ruling that was designed to look nonpartisan and neutral and have the court escape charges of political action.
In fact, he ended up doing exactly the opposite. The only way to explain what he did is that as Chief Justice he wanted to appear nonpartisan. He wanted to produce a decision whether left and right were agreeing on the main.
O'REILLY: Nobody -- how could he possibly think that the right was going to agree with the taxation? Look, in the presentation, the Obama administration's Justice Department lawyers presented 31 pages to the Supreme Court arguing that the individual mandate should be upheld. They presented 11 pages arguing that they had the power to tax.
So by our breakdown, it's 74 percent of the time was spent on upholding the Commerce Clause so-called which Justice Roberts struck down; 26 on the tax argument. How did he think that conservatives were going to say oh, yes, punitive taxation, coercive taxation, that's what we want the American federal government to be. That goes against our whole history as I made the Tea Party reference.
KRAUTHAMMER: Look, I think you're right. You should probably ask him. I'm just a psychiatrist here. I'm trying to explain to you that this is a man who thinks that he --
O'REILLY: But he's so smart. How could he not know? He is so smart. I can't see -- I can't buy into that because I think he's too smart for it?
KRAUTHAMMER: I'll turn it on you. So why did he do it if he's that smart?
O'REILLY: I have a theory. But it's just a theory and its speculative and I hate to say that but I will for a moment.
And add to that Anthony Kennedy who we now know tried every way to get Roberts to stop this madness, in Kennedy's opinion, because he told him look, look you're -- you're grasping, you are trying to find any way. So he -- he had to know in conversations with the guy like Kennedy who he has to respect what the whole balance was.
Now, why did he do it? I think he did it because he doesn't want the court to be put in these positions any longer. He wants the electorate to step up and vote for the kind of country they want.
As I said, that's the message. He said, you don't like my ruling? Vote these people out in November. Change the government. You don't like it, change it. Don't -- don't rely on the Supreme Court, my court, ok, to start legislating from the bench. I think that's what this is all about.
KRAUTHAMMER: But if he believes that, he should retire and abolish the court. If all you're saying is that the court shouldn't be an instrument to overturn the law and let people decide on all cases on their own then he's out of a job and the court is out of a job. It makes no sense.
I think we're left with -- the least implausible of explanations is that he thought he would maintain the perception of neutrality on the court and he ended up doing exactly the opposite.
O'REILLY: Ok but Charles, answer me this. If he thought that, he knew he had four dissenters who were going crazy. He didn't think that those four brilliant conservatives -- all right, I'm not putting Kennedy in but three brilliant conservatives and one independent right-leaning guy was going to reflect the rest of the country that believes that way? That doesn't make sense.
KRAUTHAMMER: They tore him apart in their dissent.
O'REILLY: They tore him apart and he knew he was going to be torn apart.
KRAUTHAMMER: There is nothing -- there is nothing left of the tax argument after you read the dissent.
KRAUTHAMMER: He himself admitted. I mean, he has -- there is a -- there is an element of his decision, there is this thing called the anti- injunction act where you're not allowed to sue the government over a tax until and unless it's already been implemented. Obviously that would apply to this.
So in other words, the entire suit against Obamacare is invalid. How does -- how does Roberts get around it? He actually writes that for the purposes of the Constitution, it's a tax. But for the purpose of the anti- injunction act, it's a penalty. That's completely illogical.
O'REILLY: I know, he had to know it was illogical. So I'm going back. I think the guy just doesn't want these cases. He wants to put it back to the public and he has. He has. He put it back to the public. They got to decide in November, Charles.
KRAUTHAMMER: Well, that's why -- well, that's why I got a degree in psychiatry so I can see a little bit deeper, bill.
O'REILLY: That's true but not only in psychiatry. You see a little bit deeper in every area than I do.