In John Roberts’ opening statement in his 2005 confirmation hearing before the Senate Judiciary Committee, he uttered the following famous/infamous lines:
“Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire... I will remember that it’s my job to call balls and strikes and not to pitch or bat.”
Today, in serving as the swing vote in 5-4 ruling that largely upheld President Obama’s health care law and, in so doing, handing the incumbent a major political boost, Roberts made good on his pledge to referee the game not play it.
The reaction to Roberts role as the pivot point in the most-anticipated (and high stakes) Court decision since Bush v. Gore in 2000 turned traditional partisan patterns on their head.
Liberals praised Roberts for his judgment that while forcing people to buy insurance was unconstitutional under the Commerce Clause, it held up under Congress’ right to tax people for not buying into the insurance system.
Republicans fumed. “This is obviously an extremely disappointing ruling, particularly with Roberts so amazingly rewriting the law in order to uphold it,” said Louisiana Republican Sen. David Vitter.
Added Dean Clancy, vice president of health care policy for FreedomWorks, a tea party aligned group: “The justification to uphold the individual mandate while simultaneously admitting it is unconstitutional under the Commerce Clause is baffling,” said Dean Clancy.
Spin aside, it’s seems clear that Roberts had his eye on legacies — both his own and that of the Court — when he threw his lot in with the majority opinion.
As we have noted in the past, the Court is at its lowest ebb in more than two decades in terms of how it is viewed by the public at large. A bare majority — 52 percent — regarded the Court in a favorable light in a recent Pew poll, a significant tumble from the 80 percent favorable rating the Court scored as recently as 1994.
Along with — or perhaps precipitated by — the Court’s diminished regard among the American public, has been an increasing willingness by the President to directly criticize or challenge the nation’s highest court.
In his 2010 State of the Union Speech — and with many of the Justices in attendance — Obama bashed the Citizens United ruling as having “reversed a century of law to open the floodgates for special interests — including foreign companies — to spend without limit in our elections.”
Then, in the immediate aftermath of oral arguments this spring on the health care law, Obama offered something of a warning to the Court, arguing that an overturning of Affordable Care Act would be both “unprecedented” and “extraordinary”.
While Roberts — and the rest of the Court — steadfastly maintain that they pay no attention to the back and forth in the political world regarding what their role is (and should be) in the national debate, it’s impossible to believe that someone as intelligent as the Chief Justice would be unaware of how an overturning of Obama’s health care law would be perceived by liberal partisans.
That’s not, of course, to suggest that Roberts’ motivation was political rather than legal. But it is to suggest that what Roberts did — whether intentionally or not — in ruling that Obamacare is, in fact, constitutional, is to remind people of two things: 1) Trying to cover the Supreme Court through the same partisan lens we cover campaigns and congressional politics is inherently flawed and 2) He meant what he said during his confirmation hearing almost seven years ago.
Given that, it’s worth revisiting a less mentioned passage from Robert’s opening statement way back in 2005. He said (in part):
“Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.”
Roberts made good on that statement today. And, in so doing, may well have changed what history will write about him — and the Court.
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