The story behind Supreme Court Chief Justice John Roberts’s majority opinion in NFIB v. Sebelius gets stranger and stranger.
First, Roberts stunned the American left, middle, and right on June 28 when he joined Court liberals and upheld the (un)Affordable Care Act — AKA Obamacare.
Next, Jan Crawford of CBS News reported that Roberts originally voted to overturn Obamacare, but then performed a high-stakes, eleventh-hour backflip. In essence, Roberts cracked under public pressure from the Left. To date, neither Roberts nor anyone else has challenged Crawford’s jaw-dropping disclosures.
Amazingly, Crawford quoted unnamed sources with intimate knowledge of the justices’ deliberations. In a city that leaks like the hull of a torpedoed warship, the Court’s inner sanctum traditionally is as impermeable as the bridge of an attack submarine. The fact that the justices, their clerks, or other top staffers are blabbing outside the palace of justice says enough about this mess to fill a law dictionary.
In an even more bizarre twist, it seems that Roberts did not just switch rather than fight. According to a July 3 Salon.com article by University of Colorado at Boulder law professor Paul Campos, Roberts wrote the majority ruling after drafting three-quarters of the dissenting opinion, which began as the majority decision to jettison Obamacare like a sack of medical waste. If true, Roberts achieved a milestone in judicial hermaphroditism.
Perhaps the next robe to drop will reveal that Roberts secretly authored the entire (un)Affordable Care Act in his office and then dispatched Da Vinci Code author Dan Brown through secret tunnels far beneath Capitol Hill to hand-deliver the 2,801-page parcel to then-speaker Nancy Pelosi (D., Calif.).
Until that bombshell lands, the question remains: Why did Roberts defect?
“Striking down the law at this moment would have brought the Court to a tipping point at which Roberts’s political opponents, at least, would afford him no legitimacy at all as the ‘umpire’ he promised to be in his confirmation hearings,” Jonathan Chait wrote in the July 9 issue of New York magazine. “He stared into that abyss and recoiled.”
What did Roberts worry would happen to him personally or to the Court institutionally? Even if detractors called the umpire a shortstop, what could anyone actually do to Roberts or the Court? Would Congress cut Roberts’s salary? Has Congress ever cut anyone’s salary? Would President Obama padlock the Court’s entrance? Let him try. Would the American people vote the Supremes out of office? Thankfully, they never appear on ballots (nor should any judge, anywhere). Barring impeachment for high crimes and misdemeanors, the only person qualified to remove a Supreme Court justice from office is the Washington, D.C., coroner.
Thankfully, no one can quibble with the effectiveness of Roberts’s strategy.
After all, had Roberts joined center-right associate justices Sam Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas in drop-kicking Obamacare into the Potomac, it would have unleashed a torrent of angry commentary, scathing op-eds, and general gnashing of molars among American liberals. Instead, by joining center-left associate justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor in keeping Obamacare alive and well, Roberts unleashed a torrent of angry commentary, scathing op-eds, and general gnashing of molars among American conservatives.
By demonstrating that he cannot endure even such potential disapproval as would have paled beside, say, the accusations that hounded GOP candidate Herman Cain off the campaign trail, Roberts has steered SCOTUS into an even more precarious spot.
Rather than an entity that reputedly is blind to everything except the written briefs that its members read and the oral arguments that they hear, the Supreme Court suddenly seems responsive to public-opinion surveys, menacing political rhetoric, and the tirades of nationally syndicated columnists.
Specifically, liberals have a new path to victory before the Court, at least in major cases: As the Supremes deliberate, left-wing rabble rousers will gather outside their offices and scream: “Do as we say, or you’re a racist, sexist, homophobic unit of the Republican National Committee!” Roberts, evidently allergic to such juvenile name-calling, might buckle anew. After all, softer words worked this time.
The caption beneath a photo of Roberts in Chait’s New York article exposed the Left’s playbook: “We will never complain about you again. Until next term.”
Roberts seemingly was intimidated by President Obama’s April 2 Rose Garden statement:
I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.
Instead of fright, Obama’s remarks generated ridicule. How, tens of millions laughed, could a former University of Chicago law professor not understand that Supreme Court justices overturn laws for a living? Furthermore, a “strong majority” did not enact Obamacare. It earned only 60 yeas in the U.S. Senate (the bare minimum needed to derail the GOP’s filibuster and its 39 nays) and 219 ayes in the House (versus 212 noes from 178 Republicans and 34 Democrats). With the single exception of Joseph Cao of Louisiana (who later lost his reelction bid), all the pro-Obamacare votes were Democratic, since Republicans did not want their names on this legislative garbage bag.
For this, John Roberts broke down and cried on Ruth Bader Ginsburg’s shoulder?
“This sort of makes Roberts a coward, if it was Obama’s pressure that did it,” Quin Hillyer, a Court watcher and senior editor with The American Spectator,writes me. “Most chief justices would have ‘gotten their backs up’ and become even more determined to resist the politicized pressure — and then find a way later on to leak, or even make veiled reference in a speech to, the impropriety of such presidential behavior.”
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.
Conversely, if President Obama is reelected and replaces a Court conservative with a liberal jurist, the resulting 5–4 center-left majority will not mean that those justices dance on puppet strings pulled by Democratic National Committee chairwoman Debbie Wasserman-Schultz. This is just the way the robes flow when judges of that ideological persuasion compose a majority. (Let’s see if liberals excoriate such a center-left majority as Democratic partisan hacks or enshrine them as the quintessence of divinely inspired truth and beauty.)
This is one more reason to elect presidents who will choose federal judges and Supreme Court justices who largely see the world as they do.
There is nothing unusual about any of this, as Roberts calmly, intelligently, and firmly should have explained. He should have written about this for the Wall Street Journal editorial page and other print outlets. He should have developed these themes on Meet the Press and Fox News Sunday. On these topics, he also should have addressed well-respected, high-profile organizations such as the Manhattan Institute, which invited Supreme Court justices Alito and Thomas to deliver the prestigious Wriston Lecture in 2010 and 2008, respectively. Alito’s and Thomas’s observations were well received by appreciative audiences full of national leaders in journalism, academics, philanthropy, and commerce.
Instead of bolstering himself and his institution, however, Roberts flitted off for a fortnight in the Mediterranean.
“Malta, as you know, is an impregnable island fortress,” Roberts said. “It seemed like a good idea.”
Even more than the Weltanschauung of President G. W. Bush, who selected Roberts, the chief justice’s Maltese escape perfectly embodies the Bushes’ unmanly, borderline-effeminate tendency to capitulate to critics rather than buttress themselves, their followers, and their policies. (Bush, for instance, was too spineless to fight for such judicial nominees as Miguel Estrada and Charles Pickering; nor did he unleash them to combat the Left’s vulgar, baseless lies about — respectively — their supposed Hispanic inauthenticity and anti-black bigotry.) In this sense, Roberts fits the Bushian mold far too well.
“Run away! Run away!” is a hilarious line from Monty Python and the Holy Grail. It also is the new, feeble battle cry of the reputed leader of one of America’s separate and coequal branches of government.
— New York commentator Deroy Murdock is a Fox News Contributor, a nationally syndicated columnist with the Scripps Howard News Service, and a media fellow with the Hoover Institution on War, Revolution, and Peace at Stanford University.