July 2 2012
Chief Justice Roberts and the Strange New Respect Award
A disheartening report from CBS indicates that Chief Justice John Roberts may have been all set to overturn the Patient Protection and Affordable Care Act but that then the Chief Justice began to go “wobbly” at the last hour.
So why on earth would a Chief Justice of the United States go wobbly?
If the CBS report is right, Roberts was in the process of writing the majority opinion striking down the law when “the external pressure began to grow. Roberts almost certainly was aware of it.”
When it looked like the law might be overturned, former Rhode Island congressman Patrick Kennedy, son of the late Senator Ted Kennedy, predicted, without a trace of irony, “Tea Party extremists will go on a rampage.” But, of course, this didn’t happen and most of us knew that a rampage by the decent, law-abiding, trash-picking up citizens in the Tea Party was never in the cards. Clearly, it wasn’t Tea Party “extremists” or anybody else on this side of the aisle that struck fear into the heart of the man who leads the third branch of government.
It was more likely that Chief Justice went wobbly because he feared the ruthlessness of the left and an administration that would not have scrupled to go after the Court, even at the risk of undermining its role in government. Conservatives have long fulminated about judicial activism, but they rarely go after the legitimacy of the Court as an institution.
Charles Krauthammer nailed the Chief Justice’s dilemma:
Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5-4 decision split along ideological lines that might be perceived as partisan and political.
National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts' concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
If you need some cheering, this piece on the Heritage Foundation blog might help: it argues that there is a silver lining to this “tragic” ruling by the Court in that the contorted reasoning in Roberts’ majority opinion does seek to limit future expansions of the Commerce Clause.
Still, it is a tragic ruling, especially if Roberts was swayed by fear for the court. But he also probably knew that those who oppose this massive takeover of health care by the federal government will pick themselves up, dust themselves off and renew the fight in the political arena.
Oh, and the CBS story reports a habit of Justice Clarence Thomas that the Chief Justice, the most recent winner of the MSM’s Strange New Respect Award for his opinion, might consider adopting:
Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.
Hat tip: Weekly Standard