We often we pass hasty judgment on the decisions of political figures without knowing all the facts that went into making them. Unlike most members of the Right, I didn't criticize John Roberts right away after his ruling on Obamacare that saw him side with the Progressive side of the Court, even though I shared the sentiment that Thursday was a dark day for liberty.
While most conservatives speculated how the Originalist Chief Justice could have possibly ruled in favor of one of the biggest expansions of government ever--some even revived the Progressive canard that his medical condition affected his judgment--I held back.
Why did Roberts bend over backwards to reinterpret the individual mandate as a tax? Why was he the lone conservative justice to see it that way? Had he spent too much time on the cocktail circuit rubbing elbows with the elite Left? Did he want to be praised by the media and secure his place in the history books? Was he afraid of the criticism he would receive if he voted the correct way? Was he threatened with an FDR-esque Court Packing scheme?
Something didn't add up. It had occurred to me that, as Chief Justice, he has more on his plate than just casting a vote. He's the face of one-third of the government, and must consider the credibility of the Supreme Court into consideration along with the good of the country.
It wouldn't be the first time the Supreme Court calculated the weight of a vote outside the courtroom. In the historic Brown vs. Board decision, Chief Justice Earl Warren lobbied the other justices for unanimous decision. Split decisions just don't send the public a message like the unanimous ones do.
Did Roberts cast his surprise vote on Obamacare in a vacuum, only looking at the narrow legal questions presented in the case? Or did he rule as the caretaker of the entire judicial branch of government?
Soon after the decision was announced, information became available that something beyond the ordinary had occurred.
The minority opinion that Obamacare was unconstitutional--that everyone expected Roberts to agree with but didn't--seems to have been written as the majority opinion, if you believe the experts. Some claim at the last minute that he changed his mind. Veteran Supreme Court reporter Lyle Denniston wrote:
"I think he was determined to try to uphold some key parts of the law, if he could find a way, partly because...he has grown concerned about the public perception that his Court is a partisan-driven Court."
But was Roberts being oversensitive to partisan criticism about his own legacy? Or was he looking at the bigger picture--the credibility of the Supreme Court as a whole?
Charles Krauthammer may hold the answer. In no uncertain terms, he wrote why Roberts ruled the way he did. Krauthammer doesn't form opinions on whims--he's well connected and I imagine he has some inside information on what Roberts was thinking. He wrote:
Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court's legitimacy, reputation and stature.
Krauthammer goes on to say that Roberts wanted to curb the out-of-control expansion of the Court's interpretation of the Commerce Clause while avoiding looking too partisan. His decision was as crafty as John Marshall's in Marbury vs. Madison.
The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.
Law upheld, Supreme Court's reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.
Did Roberts rule Obamacare as constitutional to reign in the Commerce Clause in a politically acceptable way that doesn't do damage to the institution entrusted to him? If so, he did it knowing his name would be dragged through the mud in conservative circles for years to come. He put his own reputation on the line for what he thinks is best for the country. If that's what happened, he's heroic--perhaps misguided, but still heroic.