The Corner

Law & the Courts

Serve the Law, Not the Court

According to Chris Geidner, Chief Justice John Roberts “has found himself moving ever so slightly away from the doctrinaire conservative position he held when he started on the high court — having shown repeated interest in taking actions that are aimed at protecting the institutional integrity of the court and governmental stability more broadly.”

I think the right question to ask here is how justices, and the rest of us, should think about the Supreme Court’s “institutional integrity.” One of the worst Supreme Court decisions of the last generation, Planned Parenthood v. Casey, came out as it did because a plurality of the Court answered that question the wrong way: It essentially argued that admitting that Roe v. Wade had been a mistake would do too much damage to the Court’s standing in American life to reverse it.

The wrong kind of concern for the Court as an institution may also influence the scope of the rulings it issues. Justices may have valid reasons for issuing narrow rather than broad rulings in particular cases; but they should not duck constitutional questions that are squarely before them in order to avoid criticism from political actors.

On a related note, I think Geidner is wrong to suggest that Roberts’s decisions on Obamacare can be explained as “deference” to the political branches. In 2012, Roberts voted to keep the law, but also to rewrite the part of the law that turned out to have the biggest effect on coverage. In 2015, he again rewrote the statute and ruled that future administrations were bound by the new version. In both cases, Roberts made the decision that invited the least political turmoil and did the least damage to the Court’s standing in our political culture. Whether these decisions comported with a proper understanding of the law and the Court’s role within it is a different question. That’s the kind of institutional integrity that ought to concern the justices.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

Most Popular