Dana Milbank: The umpire strikes back

Dana Milbank
Opinion writer June 28, 2012

John Roberts was the first justice to appear from behind the curtains when the buzzer sounded in the Supreme Court chamber at 10 a.m. sharp. He forced a tight grin and scanned the audience, which, on this historic day, included several members of Congress and retired Justice John Paul Stevens. The only hint of what was afoot came from Justice Antonin Scalia, who, taking his place at the chief justice’s right, bowed his head as if in mourning.

“I have the opinion in NFIB v. Sebelius,” Roberts announced matter-of-factly, as if stating that he was about to admit a new crop of lawyers to the Supreme Court Bar. His words were so measured and his delivery so calm that 14 minutes elapsed before he signaled which way the decision had gone — by answering those who wanted to declare the Obama health-care law unconstitutional with these two dreaded words: “we disagree.”

Dana Milbank writes about political theater in the nation’s capital. He joined the Post as a political reporter in 2000. View Archive

In the audience, Sen. Orrin Hatch (R-Utah), an opponent of the law, folded his arms across his chest, his mouth slightly agape. Sen. John Barrasso (R-Wyo.) put his chin in his hand. Rep. Tom Price (R-Ga.), a leader of House conservatives, shook his head. Scalia was reclining in his chair, staring blankly. Justice Clarence Thomas was practically horizontal.

Roberts explained why he had sided with the four liberal justices: not because he thought the health-care law was “good policy” but because there wasn’t a constitutional reason to invalidate the individual mandate at the core of the law. “We possess neither the expertise nor the prerogative to make policy judgments,” he wrote in his majority opinion, which he read in part from the bench. “Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

Whatever one thinks of the health-care ruling, Roberts’s opinion was extraordinarily brave. It was the biggest case yet for the young Roberts Court, and expectations on both sides were that the chief justice and the four other conservatives would deliver a majority opinion consistent with their political preferences — much as the Rehnquist Court did in Bush v. Gore.

But Roberts chose a different path. He forged a middle ground that spared the nation the political crisis that would have come from striking down the president’s signature legislative achievement.

In the process, Roberts went a long way toward reestablishing the legitimacy of the court, which could have importance far beyond health care. The justices’ standing is in serious jeopardy — in a recent Gallup poll, only 37 percent of Americans had a high degree of confidence in the Supreme Court — but the chief justice gave a powerful rebuttal to skeptics who believe the justices are politically motivated.

In his confirmation hearing seven years ago, Roberts famously described himself as an umpire calling balls and strikes, employing humility and confronting “every case with an open mind.” Since then, many on the left have come to view Roberts as just a more affable version of Scalia, Thomas and Justice Samuel Alito. But in the case that counted most, the umpire struck back.

Because the individual mandate in the health-care law qualifies as a tax, Roberts concluded, and “the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

This stunned liberals. Rep. Laura Richardson, a California Democrat, thanked on the steps of the court “Chief Justice Roberts for showing, for the first time in a long time, that government can work if we focus on the facts.” And it enraged the conservatives who once adored Roberts. Rep. Michele Bachmann (R-Minn.), who had been in the courtroom, railed: “Clearly this is an activist court. . . . America will never be the same.”

On the sidewalk in front of the court, the fury and insanity of American politics were on display: tea party activists waving flags and ungrammatical protest banners, evangelicals prostrating themselves on the pavement to pray, proponents of government-run health care dressed as belly dancers, and the two sides shouting taunts at each other.

Roberts got a taste of that inside the chamber. Justice Anthony Kennedy, in dissent, accused the Roberts majority of “judicial legislation,” of “vast judicial overreaching,” and of trying to “force on the nation a new act.” Roberts pursed his lips and stared at the desk in front of him. Justice Ruth Bader Ginsburg, in her partial dissent, objected to parts of Roberts’s reasoning but embraced the conclusion because Obamacare “survives largely unscathed.” Roberts turned a pained gaze toward the florets on the ceiling.

Surely, the chief justice did not want to uphold the health-care law. But in doing so, he upheld his integrity and that of the Roberts Court.

danamilbank@washpost.com

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