The Corner

Well, It Worked, Didn’t It?

President Obama’s public humiliation of the Supreme Court, that is: 


The Right needs to stop kidding itself that last week’s epic Dolchstoss amounts to anything but a loss: a loss to the country, a loss to the court’s apolitical reputation, and a personal loss for the chief justice, whose legacy now seems permanently sullied. From CBS News:

Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”

Spare me the argument that Roberts, with the ghosts of 1937 tramping through his mind, was trying to “preserve the integrity” of the court. His jaw-dropping, intellectually inconsistent, Kafkaesque ruling in the Obamacare case is likely to live in infamy, much like such earlier Supreme turkeys as the Dred Scott decision and Plessy v. Ferguson. In both of those cases, as in this one, the Court took refuge in legal niceties and sophomoric hairsplitting, refusing to acknowledge the greater moral issue and the looming national catastrophe.

Even if Roberts did make his “switch in time” pusillanimously, to avoid another Obama tongue-lashing and the ill will of the major editorial pages . . . so what? There are times in the affairs of men when business as usual should no longer obtain, and all right-thinking people (including the four justices who voted to strike down the monstrosity) must simply — in one of the Left’s favorite phrases — do the right thing. That Roberts did not will be to his everlasting shame.

Further, it’s not like it won him any good will or Strange New Respect, either from his poisonous colleagues (read Ruth Bader Ginsburg’s classic dog-in-the-manager “concurrence”; her shiv-between-the-ribs citation of Romneycare was also a nice touch) or from the New York Times, which thanked him thus:

Six full terms after Justice Samuel Alito Jr. joined the court, the five in the majority have redefined judicial conservatism. The contrast in style and philosophy with the moderate minority is pronounced, including the conservatives’ willingness to flout court rules, constraints of precedent and well-established practices of legal reasoning to reach results they seek.

It is no wonder that the court’s standing in public opinion polls is at its lowest level in a quarter of a century, with just one in eight Americans believing that the justices decide cases based only on legal analysis.

Justice Elena Kagan said last month, dissenting in the crime lab evidence case, that the conservative majority sometimes forsakes “precedent-based decision making,” which guides lower court judges and provides predictability in the justice system. The court reached the right result on the Affordable Care Act, but that ruling was not a sign of change in a strident conservative majority.

You have to love that “moderate minority” phrase, too.

But this is how the Left sees itself — eminently, moderately reasonable, and only driven to extreme “by any means necessary” measures by the intransigence of the Right and for its effrontery in trying to oppose “progress” as they define it.

Until the Right understands that the Left cedes us — as the Times editorial so vividly illustrates — no legitimacy at all it will continue to be surprised by weak men like John Roberts, who allowed a rogue president to publicly browbeat him and the institution he heads — and then, when he had a chance to pay him back, turned tail and ran.

As Kafka wrote in “Zur Frage der Gesteze”: “Was der Adel tut, ist Gesetz” (“Whatever the nobility does is the law.” So start acting accordingly. 

Michael Walsh — Mr. Walsh is the author of the novels Hostile Intent and Early Warning and, writing as frequent NRO contributor David Kahane, Rules for Radical Conservatives.


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