The Fall of the house of Roberts


By: Robert E. Meyer

Unless you are Rip Van Winkle, you have heard an earful about how Chief Justice of the Supreme Court, John Roberts, has sided with the liberal wing in declaring the Obama health care bill constitutional. A host of prognosticators have offered their theories on how this happened and what it means. Adding to the intrigue, was a news story released on July lst, by a CBS journalist, that claimed Roberts changed his vote on the issue, apparently in reaction to the criticism heaped on the court, as pundits presumed the health care law would be struck down.

Roberts, as Chief Justice, probably feels more pressure than do his fellow justices. The court of this era will be historically referred to as “The Roberts Court,” and apparently Roberts didn’t want to bear the legacy of incurring the derision of the media and the liberal political functionaries. This is unfortunate because it is only a covert confirmation of what we already know: that courts are far from independent bodies, but are unduly swayed by the political debate. Roberts couldn’t meet the standard he imputed on himself, that he is like a baseball umpire calling balls and strikes.

I always thought from the beginning, that President Bush made a mistake by not promoting Antonin Scalia to Chief Justice after the death of William Rehnquist. Of course, this would have required two votes in a hostile political environment, one for the Scalia promotion, and one for Roberts as an Associate Justice. In this case it required only one vote. And Perhaps Bush knew that an Edward Kennedy-like assault would prevail, in the wake of such a nomination, the way both Bork(successfully) and Alito(unsuccessfully)were ambushed. That said, we see why it is risky to promote someone to Chief Justice with no SCOTUS experience, not because Roberts’ judicial temperament and philosophy was a wildcard, but because we never saw how he reacted under the pressure. The umpire’s calls of “balls” and “strikes” was obviously impacted by the hostility of the hometown fans.

How does a Justice who changes his position in the wake of such pressure augur for future Supreme Court decisions? Terrible and not well. We can’t consider Roberts an “Originalist” any longer. An “Originalist’ would declare the whole bill unconstitutional, and not craft an alternative path by which it can be deemed legitimate. Every crucial decision will be fraught with uncertainty–and not because Anthony Kennedy is a swing vote. The CBS report(leak?) indicated that Kennedy, of all people, was trying to persuade Roberts to maintain his initial decision to declare Obamacare unconstitutional. My pipe dream was that the conservative justices added under Bush would bring Kennedy back in line, but despite the rumors, it remains a pipe dream.

Of course, their have been many past instances of conservative judicial appointments, frustrating conservative citizens by rendering liberal decisions. We could point to Sandra Day O’Connor being unreliable, the snafu of nominating Steven Breyer, the confirmation of Kennedy in place of Bork, etc. We could do a whole chapter in a book chronicling these defections or miscalculations. But a lot of these bad appointments were apparent from the start. The Roberts syndrome came out of left field unexpectedly.

What I find most disturbing is that the same can’t be said about the nominees appointed by Democratic presidents. They have been in lockstep in their decisions, and have seldom been criticized by the media for their monolithic groupthink. The last instance of liberal defection that comes to mind in when Byron White(appointed by John F. Kennedy)called the Roe v. Wade decision, creating a right out of thin air. But courts were less polarized in those days. So how do we account for what Roberts? I think the desire for personal approval from Washington insiders and the prestige of the court, eventually become a motivating factor that supersedes the commitment to a constitutional judicial philosophy.

Roberts essentially offered the rationale that the decisions of the High Court are not meant to protect citizens from ill conceived legislation that is crafted by representatives that the people elect. Tell that to liberals. Yes, Roberts’ claims are actually true, but this is entirely a cop out if its is meant to justify Roberts behavior in reaching this decision. And Yes, the fate of Obamacare will be now returned to the hands of the voters in November, but why procrastinate when it comes to doing the right thing? Passing the buck on the sure thing has proved a risky venture. And it raises the question as to what is the role of the High Court in the process of judicial review? Roberts, by repudiating constitutionally of Obamacare under the Commerce Clause, but allowing it under congressional taxing powers, resembles Perry Mason in the court room: He not only vindicated the client, but did his opponent’s job by fingering the real culprit.

Numerous conservative pundits have groped to find a silver lining in this decision, trying to tell us the glass in half-full because it will now motivate conservative voters. At this point in Obama’s ruinous tenure, if we still need motivation to vote, we have been comatose at the wheel.

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