John Roberts’ Play For History

Great chief justices are canny, far-sighted, and yes, consummately political

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Chief Justice John Roberts and Chief Justice John Marshall

Few chief justices have had as good a run as John Roberts has with the center-left political class in recent days: a man who would have been eviscerated as an ideological disaster had he voted to strike down any part of the Affordable Care Act has instead become an unlikely American hero in many precincts — for now.

In making himself the fifth and deciding vote to uphold President Obama’s health-care reform (possibly changing his mind along the way), Roberts has shown himself a chief justice with a sense of history. By and large the chiefs who fare well down the years are the ones who prove effective politicians, men who understand that the Supreme Court is not a marble Brigadoon but a fundamentally political institution whose standing with the nation is fluid, not fixed.

(MORERoberts Rules: What the Health Care Decision Means for the Country)

John Marshall grasped this early on. Marshall is one of those Founders who remains more monumental than mortal — a fact that might surprise him and his contemporaries, for in real time the third chief justice established the principle of judicial review without forcing an existential showdown with presidents ranging from Thomas Jefferson to Andrew Jackson.

In Marbury v. Madison, Marshall ostensibly ruled against Jefferson’s Republican administration — but really didn’t, in fact, for Marshall swerved in his opinion from directing the executive branch to do something it was refusing to do by declaring the provision of the 1789 Judiciary Act under which the plaintiff had brought the case unconstitutional. It was brilliant, establishing a principle by avoiding a crisis in practice.

(MOREWhy Won’t The Supreme Court Allow TV Cameras?)

Earl Warren — himself a former Republican governor of California — knew that integrating public schools was so incendiary an issue that only a unanimous court could do it. In the early 1950s, then, he forged a 9-0 vote to end separate-but-equal. Warren knew that integration was going to be difficult enough to bring about, and that a politically unified court would be best for the country.

And now Roberts has added a chapter to this history by insisting that the court defer to the elected branches, essentially arguing that it is not the job of the court to protect the people from the consequences of their political choices.

(MORE: Joe Klein: Obamacare is Here To Stay: Now It’s Time To Make It Better)

Which is, in its way, a political choice all its own. In a nation still skeptical of a court that stopped the Florida recount in Bush v. Gore in 2000, Roberts decided to act in the Marshall-Warren tradition of protecting the court’s standing by declining to exacerbate an already-tense political atmosphere. A Republican chief throwing out a Democratic president’s legislative achievement would have further polarized the nation. For now, at least, we’re only as polarized as we were before the decision.


26 comments
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CB1111
CB1111

I was doubtful about him until this point. If you read what he wrote, he cleverly made it a tax. A simple majority in Congress is required to modify it as a result. Very thorough. I am for reform excluding the mandate on individuals and businesses. But Chief Justice Roberts did the right thing. At least someone in government is.

There is therefore an opportunity to drop partisan behavior and solve this problem. Will we ? Will Congress?

lop2bwp
lop2bwp

I find it fascinating that when the Conservatives on the Court vote en bloc, the left screams about the "radical" Court.  When all four Liberals on the Court vote in tandem, both the left and the right yawn and think it's just business as usual.  What the hell?

rzalon
rzalon

If "history" remains the exclusive custody of feckless partisan hacks like Meaham, then I'm sure Roberts' reputation is assured.

kjatexas
kjatexas

"It

is not our job," the Chief Justice writes, "to protect the people from

the consequences of their political choices." But the Court's most

important role is to protect liberty when the political branches exceed

the Constitution's bounds, not to bless their excesses in the interests

of political or personal expediency or both. On one of the most

consequential cases he will ever hear, Chief Justice Roberts failed this

most basic responsibility.

 

Tina Ferrer
Tina Ferrer

Good boy, now sit up John, good boy, treat, now roll over John, good boy, treat, okay now shake, good boy, treat, now go drill yourself.

I'm not sure what legacy you may think you're leaving other than allowing the Federal Government total control of every aspect of our lives. Nice legacy huh John? Now that you have set precedence for being partial to the left, next go around you will be expected to go up and beyond on thier behalf by factors of 10 but you knew this. But that's not all as the rest of your decision will be played out in the years to come of which time the Piper will be paid but most importantly, you Sir are not going anywhere during this time. You will see along with 200 million other true Americans the results of your decision and the rectifications the majority will use to gain back the freedoms you so easily gave away.

rebekahhuang
rebekahhuang

Either way it's judicial activism and it doesn't belong in the highest court without term limits in a republic that is there solely for the final word of interpretation of an existing constitution.

EmeraldAl
EmeraldAl

Would have loved to have read this article if he didn't vote your way.

Politically Incorrect
Politically Incorrect

"For now, at least, we’re only as polarized as we were before the decision."

WRONG: we are worse off. Traitor Roberts has damaged the SCOTUS beyond repair. If maintaining the "prestige of the court" was the rationale for his betrayal, the results speak for themselves:

- Traitor Roberts re-wrote the law from the bench in order to uphold it. This is hardly an exercise of restrain.

- Traitor Roberts created new precedent that the federal government can tax us for not doing what Congress wants us to do. What's next, buy an electric car or else I'll confiscate 2% of your income (liberal Congress) or buy "Made in America" only or else I'll confiscate another 2% of your income (conservative Congress). In order to save Obamacare, he invented new precedent that expands the power of the Federal Government beyond anything a liberal zealot could have imagined.

- And now we have in Roberts a third type of justice: one who can be swayed by political pressure (if the CBS News story is true). So until now people knew of 2 types of justices: the strict constitutionalist/original-intent-er and the "living constitution" ones (ie those who see the constitution as a meaningless document that can be stretched and altered for political expediency). We knew that Republicans wanted to nominate those of the first kind (even though many times they transformed into the second after being in the bench) and Democrats those of the second kind. Roberts belongs to a complete new breed: one whose vote is up for grabs if he is bullied enough. Until Thursday I thought that our politics could not get anymore cynical. Roberts showed that indeed, they could.

What would be interesting to know is why Roberts did it. Was it in order to get invited to Georgetown cocktail parties? To be praised by the NY Times? Was he promised that his kids would get into Harvard? Was he blackmailed? A guy like this does not belong in the SCOTUS. If he had any decency he should resign immediately.

kjatexas
kjatexas

 The Democrats and the Obama Administration, have been very successful in bullying anyone who opposes their agenda by smearing them as racists. Justice Roberts simply didn't want to go down in history as the Chief Justice who declared unconstitutional, the signature legislation of the first black American President. He caved to the pressure, and failed in his primary duty, upholding the Constitution. He neither upheld his own or the court's dignity, he made it worse, and that will be his legacy.

Politically Incorrect
Politically Incorrect

Indeed, which is why he will be remembered as the first documented case of a Chief Justice that switched his vote (not his general attitude towards future cases as it happened in the New Deal court, but an actual vote which was based on sound legal reasoning) pushed by political pressure. This is hardly a legacy he expected to leave. When all is said and done, future generations of legal scholars will remember this as one of the Court's lowest points. Kind of what happens today with Roe v Wade, which is despised even by defenders of abortion. He doesn't have the stamina to be SCOTUS justice; he should immediately resign. Although the likely event is that we will have another liberal justice in the Court, at least people will be fooled no more.

Rumpole
Rumpole

As a conservative I am of two minds on this.  First, issues like this are better left to political resolution.  Look at the mess that Roe v. Wade created by removing abortion from the political arena.   However, each branch of government should just exercise its granted power without regard to what the others are doing.  Roberts ignored his legal belief for a political resolution.  The tyranny of the majority was a great fear of our founders and holding an unconstitutional law constitutional for political ends is not a good idea.

SGinNC
SGinNC

 "essentially arguing that it is not the job of the court to protect the people from the consequences of their political choices."But it is the court's job do defend the Constitution and since he allowed the Government to take more power and freedom from it's people,  he failed all Americans.

Chillycat2
Chillycat2

Roberts has shown himself to be a gutless half brain dead idiot. No matter what else he rules on and how he rules that is ALL he will ever be. Anyone who supports or helps to install obamacare is mentally challenged

JPalm
JPalm

Jon,

Where did Roberts touch you?

Show me on this doll.

Armyspouse1988
Armyspouse1988

And instead of fixing our economy and shoring up employment--Mr. Obama also went for the lights of his own history making with this horrible new entitlement.  

So many selfish little toads--so few true, brave MEN!

Tina Ferrer
Tina Ferrer

I agree Armyspouse, outside of our own in the military where are this Nation's men?   

Hill
Hill

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Sharlene
Sharlene

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Sharlene
Sharlene

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worleyeoe
worleyeoe

Wrong. The for's and against's are even more polarized now. It's that middle though that will ultimately determine how this plays out.

I've read a lot about Roberts' possible thoughts of coming to his final conclusion, and I can't overtly disagree with what I've read. However, striking down the mandate would not have been as radical as many think it might have become. From everything I've read, this law has little chance of saving money over the long haul.

If Obama wins re-election or the House does not fall, parts of the bill will continue to be repealed or replaced. Unions will most assuredly rise up against the Cadillac tax as we march towards 2018. So Walker in WI is starting to look like a King maker. Moreover, it's unfortunate that Obama spent his political capital on expanding the largest segment of our economy which is also bankrupting us.

Instead, he should have pushed though major tax reform and just enough protectionism to bring home an initial wave of jobs from overseas. And he should have built a full fence with stimulus funding along with comprehensive enforcement of e-verify as a grand bargain to grant legal work visas to those 30 and under brought here while they were minors. This last part is key, because it would have shown a willingness to use the Legislative process in lieu of acting on executive privilege and not enforcing our laws.

We are approaching the end of his first term, and he has not done one thing to change the structure problems with our economy.

JohnOBX
JohnOBX

As a independent with a somewhat liberal flavor, one thing the Robert's decision does for me is make me take a longer look at some other things he's decided on that I did not agree with.  Rather than dismiss him as a conservative justice whose world view isn't close to my own, I now will give the benefit of the doubt and try to understand his arguments and see things from his perspective.  (Unlike, say, Darth Thomas and the Emperor Scalia.)

The fringes will never budge, but hopefully his ruling will strike a (small) blow for bi-partisanship.

mike melusky
mike melusky

Another leftist masquerading himself as an "independent"...  if we really want to "strike a (small) blow for bi-partisanship", how come we can't get the four liberal hacks ("fringe") on the Supreme Court to get their "world view" to become closer to this country's?

SGinNC
SGinNC

By calling Mr. Thomas "Darth Thomas" and Mr. Scalia "Emperor Scalia" I am guessing you are not an independent, but a Progressive pretending to be moderate.  Of course you are happy with Robert's ruling because he took a Liberals position, I wonder if you would have thought the same if say Ginsberg voted with the Conservatives.

JohnOBX
JohnOBX

Well, you'd guess wrong.  For example, I am pro-death penalty and against legalization of drugs.  I was against military action in Iraq but for military action against Afghanistan, though firmly oppose this 10 year useless effort to drag them out of the Stone Age.  I supported Bush 41 over Dukakis and Clinton over Bush.  So, where does that put me on your spectrum?  

All that aside, my point is that Robert's decision makes me view him in a new light:  somebody thoughtful and deliberative who is actually willing to look at both sides of an issue rather than having a knee jerk response.  I think Scalia crafts opinions to reflect his world view rather than weighing each independently on its merits.  I think Thomas plagiarizes Scalia's worldview.  

Perhaps if Ginsburg or others weighed in on the "conservative" side on an issue important to you, you'd have the same reaction.  They probably have, but nothing as monumental as Obamacare.  

SHOWINGYOU TRUTH
SHOWINGYOU TRUTH

It puts you in the "bulls eye" of being this nation's Number One problem. People who either don't understand many issues, and therefore, vote/support/defend the WRONG solutions, OR, spineless dumb-dumbs who actually DO have a chosen - LEFT WING path in mind for this country, but keep themselves safe from ridicule by a seemingly occasional right sided cause in their baggage of claims. The absolute worthlessness and danger of the likes of "independents" in this country is indescribable.

With the nation teetering on a bizarre, neo-fascist-communist-Gomorrah style of destructive ideological error, any person who claims to be "independent" can ONLY be a leftist gorilla in disguise, or, entirely, mentally ill. In other words, we are at the point where ONLY right sided legislation can bring us closer to the republic's constitutional protections.

Seriously folks, ABC's 80's miniseries, "AmeriKa" is now come to fruition. (strange but fitting, the last I checked, now you can only acquire a copy of that outside this nation's borders.) The only thing missing at this point, are the full exposure of the commi-pinko leaders at the top pushing all the buttons. More than one of those will come straight out of the Rockefeller institute. And I'm guessing, John Roberts has been threatened or bribed by the same.

Juarez
Juarez

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