For months, as liberals anticipated the Supreme Court would rule ObamaCare unconstitutional, there has been a constant drumbeat of criticism against what they assumed was a conservative majority that would thwart the president’s signature legislation. In particular, Chief Justice John Roberts was the focus of a great deal of uncomplimentary commentary, with many arguing that by leading the Court to the right he would establish a tainted legacy as a partisan judge who had damaged the institution he led. But within moments of the announcement that Roberts had sided with the four liberals on the Court, the “re-evaluation” of the chief justice had begun.
As the New York Times‘s Ethan Bronner wrote in the paper’s Caucus blog, previously, “He was seen by many, at least on the left, as a right-winger more devoted to conservative politics than the purity of the law. That could change.” Count on it.
The way this process works is that whenever an avowed conservative crosses over to the left,, that person is lionized as attaining a new maturity and transcending partisanship. That was certainly the case with David Souter, whose appointment to the Supreme Court was among the greatest mistakes of George H.W. Bush’s presidency. And now that Roberts has saved President Obama’s bacon, we can expect those negative mainstream media profiles of his Court to be turned into glowing accolades for his respect for precedent and desire to preserve the integrity of the Court.
By contrast, Anthony Kennedy, who had received more than his share of liberal praise in recent years as the left courted the supposed swing vote, will start getting the same abuse that is customary for Justices Scalia, Alito and Thomas, because he joined them in a vigorous and principled dissenting opinion that would have ruled all of ObamaCare constitutional.
Nevertheless, the left’s enthusiasm for Roberts will be somewhat tempered. By ruling that the Affordable Care Act was a tax and therefore constitutional, the chief justice provided the legal rationale the law needed. But Roberts’ compromise was not what liberals wanted. By affirming that the law was a tax, Roberts made President Obama look like a liar because he had pledged it was no such thing. His opinion also meant there was a majority in favor of limiting the reach of the Commerce Clause, a principle conservative legal scholars have vainly advocated for for decades.
But that will provide no comfort for conservatives who understand all too well that Roberts could have joined the four dissenters in a decision that would have brought an abrupt halt to the expansion of the federal government’s power. Liberals do well to rejoice today, as this means a historic opportunity has been lost to restrain the growth of the federal leviathan.
Conservatives will bitterly remember this day and Roberts’ role in it. So, it is little surprise the right-wing blogosphere is bubbling over with bitter reproaches and even some over-the-top calls for the impeachment of the chief justice. Such chatter is a waste of time. But it’s clear that Roberts’ apparent desire to keep the Court out of the political fray has led him to make a decision that will forever ruin his reputation with the right while endearing him to the left.
But if Roberts thinks the left will embrace him the way they did other Republicans who joined the liberals, this will have to be only the first of a series of betrayals of conservative positions on his part. In particular, so long as the landmark Citizens United ruling that protected political speech and invalidated campaign finance restrictions stands, he will continue to be abused (though perhaps not as much as the other conservatives).
Roberts is wrong to think this decision will protect the Court from the kind of criticism it got after Citizens United, because political issues will always be part of the Court’s brief. Nevertheless, what happened today is a reminder to conservatives that liberals have a clear advantage in the judiciary that can only be counter-balanced by victories at the ballot box. Today’s decision can be rendered a footnote to history if a Republican Congress and president are able to repeal ObamaCare next January. But given the desire for some jurists to retain the good opinion of the mainstream media, the right must understand that winning judicial battles is not as simple as winning an election.