Reading Roberts
Jules Witcover

The Conservative World is up at arms at the effrontery of its onetime hero, Chief Justice John Roberts, in casting his vote with the bloc of four liberal Supreme Court judges to save the heart of the despised "Obamacare."

The rage dismisses out of hand Roberts' argument that the court, and inferentially its chief justice, has a special obligation to find a way "to save a statute from unconstitutionality" if there are legal grounds to do so. The statement was a rather remarkable but much-needed curtsy to the role of the legislative branch in the American system.

Roberts was saying that Congress in its collective wisdom, or folly, had done the job assigned to it -- somewhat of a rarity these days -- and it was not the task of the judicial branch to say what thought of the product, but only whether it reached it legally. He correctly noted that the voters have recourse at the ballot box if they don't like what Congress did, which is one of the things November's approaching election will be about.

Conservative World seems particularly miffed at Roberts for pulling off a sort of bait-and-switch in arriving at a way to save the health care law. Having sided with the rest of the Court's conservative bloc against allowing the Constitution's commerce clause to justify the law's individual mandate, he found another route to salvage it.

His solution of upholding its constitutionality on the basis of Congress' taxing power, which the four liberal justices readily bought into, had a particular irony in it. Ever since the law's enactment, its Democratic supporters had been denying that the penalty on Americans who don't buy health insurance is a tax.

So Roberts' path to the law's constitutionality gives its foes a club with which to beat Obama in the fall. They have wasted no time in saying it is just another Democratic tax on the middle class in a time of supreme economic distress.

The chief justice's supposed apostasy from conservative gospel in this one instance is no dependable indication that he has abandoned the faith. He joined in the court's rejection of the provision that would have compelled states to accept expansion of Medicaid, seen on the right as another overreach of federal power.

Nor should Roberts' vote saving the individual mandate as a legitimate tax be taken as some great compromise to break the 5-4 ideological split that has characterized many of the court's votes going back at least to the Rehnquist court.

Roberts seemed to indicate in his majority opinion that he was guided in part by the notion that the court had an obligation, or at least an opportunity, to a reputation as hopelessly partisan that has clung ever since five Republican justices joined in placing George W. Bush in the White House in 2000.

If so, such an effort was particularly needed now in light of the increasing outspokenness of Justice Antonin Scalia, most recently on the merits as opposed to the legality of Arizona's controversial immigration law. Scalia has long teetered on the line between law and politics, with personal jibes at Obama and other behavior.

As for Roberts, while it is much too early to tar him a traitor to the cause of conservatism, neither is it time to coronate him as one of the great chief justices for breaking through the ideological division that has prevailed in the court in recent years. The November election, in addition to offering voters the chance to decide the real fate of Obama's health care law, also could have much to say about the court's future.

A victory for Mitt Romney could do to "Obamacare" what the court did not do, if voters take to heart Roberts' observation that "the nation's elected leaders ... can be thrown out of office if people disagree with them." By the same token, Obama's re-election could take the steam out of the health care fight, with voters willing at least to see how the contentious legislation actually will affect them.

 

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Reading Roberts | Politics

 

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