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John Roberts: Hostage to (Obama’s) Fortune?



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Herewith, some Fourth of July thoughts on some of our national institutions, in these (too-)exciting times:

Even a week later, I remain shocked by Chief Justice John Roberts’s Obamacare decision. My shock is not that of a disappointed partisan; I may be the only person alive who doesn’t have a very strong opinion on the underlying issue, of whether Obamacare is constitutional. (On the one hand, I know that the individual mandate was supported in the past by conservatives who presumably thought it was constitutional, and that it was a necessary measure to rescue a non-functioning health-insurance market. On the other hand, I find the precedent of a massive, government-compelled purchase deeply worrisome: If government can do this, what can’t it do? You’ve heard all the arguments, on both sides, a zillion times now.) No, my shock was occasioned solely by the utter overturning of the conventional wisdom — beforehand, lefties and righties of my acquaintance seemed to be in total agreement that Obama would be lucky if only the individual mandate got struck down — and by the extent to which the decision seemed more political (or, put pejoratively, lawless) than legal.

The latter point was troublingly in evidence when the stories came out afterwards about Roberts switching his vote. The image America has now is of Chief Justice Roberts suddenly seeing himself in the mirror and saying, “Whoa, I personally am about to deal the coup de grâce, the death blow to a whole presidency — that’s not a power that I should have.” So he changes sides and then lets the whole world know, through these rumors, that he initially wanted to overturn Obamacare but decided not to.

At this moment, therefore, Obama looks like the luckiest man in history — “he was finished, but his enemies flinched at the last minute.” As for Roberts, how history looks at him will depend on what happens to Obama: If Obama loses in November, or if Obama wins in November and has an okay-or-better second term, Roberts will look good. But if Obama wins in November and spends the next four years doing great harm to the country, Roberts will look pretty bad.

A digression: I know most conservatives assume that a second Obama term would be one long, deep slide down the cliff to serfdom. But let me offer a consoling thought, in the form of a personal anecdote: Right after the 2004 election, I was euphoric about the prospects for President Bush’s second term. Wow, I thought, even after the horrible crisis of legitimacy after the 2000 election, Bush ended up being a pretty good president. Now, that same president has a solid national mandate, and we can actually move ahead on major entitlement reform to save Social Security, and implementing growth economics that will spark a bigger boom even than Bill Clinton’s, and promoting democratization in the Muslim world, and and and  . . . An older colleague laconically said: No. Why? “The second term is always a disaster.” But but but, I expostulated, isn’t that just a ridiculous form of determinism, the application of one-size-fits-all iron laws to a history that can be shaped by human choices etc.? No: “The second term is always a disaster.” Do I need to tell you which of us ended up being right? The same is true, a fortiori, of Obama: Here’s a guy who came into office after a thumping election victory, bearing massive amounts of public goodwill, watching his opponents squirm as they tried to figure out how they could dare to oppose any of his initiatives, and reveling in the support of a House majority and a filibuster-proof Senate . . . and then he accomplished zilch. Suddenly, in a second term, facing a solid GOP congressional majority, he’ll turn into FDR? He’ll be lucky if he can pass an amendment to one of the Clinton-era school-uniform bills.

End of digression, and back to Roberts. I realize that everything I wrote above is an exercise in consequentialist reasoning — an assertion that Roberts’s decision will be judged by what happens as a result of it. There is of course a deeper issue of right and wrong: The famous maxim “Let justice be done, though the heavens fall” expresses it succinctly. (I had always assumed this was a Roman invention, because I heard it so often in Latin: Fiat justitia, ruat coelum. But it turns out that the phrase dates back only to modern Anglo-American jurisprudence.) It would of course be inhuman not to think of consequences when making a moral choice, and I’m not saying Roberts should have robotically ignored those considerations. But dispassionate predictability is an (perhaps the) essential component of the rule of law, and I think the rule of law — and the respectability of the U.S. Supreme Court, the very institution Roberts was trying to safeguard — has suffered a serious blow over the past week.

It is possible that the American people will accept Roberts’s invitation to restore a vigorous, principled constitutionalism to our system of government. But it was a huge, huge gamble. As Carrie Severino and Jay Nordlinger have explained, the Supreme Court has a job to do: declaring unconstitutional acts unconstitutional. Most conservatives think Roberts got the substance wrong, because, they contend, Obamacare is actually unconstitutional. And if it is unconstitutional, it will remain unconstitutional, even if the American people (in polls or elections) someday begin to support it.

  



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