University of California at Berkeley Law School professor John Yoo seems more confident than Hillyer about diagnosing Roberts’s loss of nerve.
“Roberts caved because of the Obama administration’s political pressure,” Yoo tells me. “But what is lifetime employment for — other than to allow him and the other justices the freedom to do the right thing without fear of political reprisal? The justices are amateur politicians at best, and the last thing we should want them to do is try to do the politically right thing. They should just interpret the Constitution properly, and let the chips fall where they may.”
The Roberts imbroglio underscores the expectation that conservatives must go left to demonstrate their decency, rather than that liberals must go right to show their sanity.
“The notion that conservatives must constantly prove themselves to be reasonable people to their liberal betters is more than a little tiring,” an exasperated Michael Goodwin wrote in the July 1 New York Post. “The defensiveness, born out of a desire for political and legal comity, is too often perceived as weakness instead of a generous gesture worthy of reciprocity.”
“The result is not more comity, but new demands that conservatives be, well, more liberal,” Goodwin added. “Whether it involves the Supreme Court, the Senate, the White House, or the local school board, a search for compromise generally moves only in one direction.”
Rather than wallow in such a collapse of will, Roberts should have withstood those who muscled the Court.
First, Roberts should have maintained his original decision to dump Obamacare.
Next, he should have harnessed the unlimited access to the media that he can muster effortlessly. He should have made the basic point that the death of Obamacare surely disappointed and even angered the American Left. However, Roberts should have observed, so go tough cases. The Supreme Court decides such conflicts because they are tough. By definition, many people abhor their solutions while others applaud, no matter the judgments. Easy cases rarely brighten the Supreme Court’s door.
Roberts also should have denounced those who not only disagree with SCOTUS’s rulings, but attack it as a body. He should have reminded Americans that the Supreme Court sits atop one of this republic’s three branches of government. The Founding Fathers empowered it to ensure that laws do not overspill the banks established by the Constitution itself. And if the Roberts majority thus rejected Obamacare, then it simply did its job.
Roberts should have reasoned that no one should have been surprised that he and the other Republican-nominated justices spurned Obamacare, any more than anyone should have been shocked that the Democratic-nominated justices supported it. GOP appointees are likelier than not to favor arguments that stress individual liberty, consumer choice, limited government, and the ideals that generally animate the Republican presidents who nominate them.
Similarly, Democratic appointees are more likely than not to smile upon appeals that call for government intervention to achieve more equitable socioeconomic outcomes. This — no coincidence — is exactly the thinking that propels most Democratic presidents.
That Supreme Court justices usually reflect the philosophies of those who nominate them is, more or less, how this system typically works. This does not mean that the members of a 5–4 center-right majority are the chattel slaves of Republican National Committee chairman Reince Priebus.