John Roberts just saved the Supreme Court, maybe

Part of me thinks that if Bush v. Gore didn’t destroy the court’s reputation as an impartial arbiter of the law — as no less an authority than Justice John Paul Stevens warned it might — then probably nothing will. But public approval of the Court has been dropping over the last few years, and a party-line, 5-4 vote against the biggest, most politically charged issue of President Obama’s presidency probably wouldn’t have helped.

And, apparently, that almost happened. The Court’s ruling on the Affordable Care Act came so close to striking down the law’s individual mandate that both CNN and Fox initailly reported that it had. It established a more radical reading of the Commerce Clause — the idea that Congress can regulate industries that do business across state lines — than even the law’s opponents expected a year ago. And yet some deft maneuvering by Chief Justice Roberts managed to soft-pedal the impact of the ruling and turned him into a hero of judicial restraint.

Most of the reaction from supporters of the Affordable Care Act went something like this one, from a former editor of mine: Relief that Roberts’ unexpected decision to side with the court’s liberal bloc ended up preserving (most of) the law. It makes perfect sense: I did my best not to get carried away with all the wild speculation about whether the Supreme Court would make up some reason to strike down the Affordable Care Act, but it wasn’t until the ruling came down that I realized how thoroughly the conventional wisdom that the law was doomed had gotten to me as well.

But this ruling only came as a surprise because the Court had been looking so transparently partisan beforehand, with a series of reversals or narrowings of precedent on affirmative action, gun control and, most infamously, campaign finance — going out of its way to rewrite a century’s worth of law regarding campaign contributions that neither side had originally even challenged.

Citizens United, though, was always kind of an outlier. Since joining the Court, Roberts has tended to favor rulings that work a lot more subtly, and that mean a lot more in the long term than it does for the actual case that’s at issue. It’s one of the Court’s oldest tricks: In Marbury v. Madison, although the Court chose to give itself the authority to strike down laws it thinks are unconstitutional, it actually upheld the law that was being challenged. Roberts just accomplished a similar trick, by establishing a dramatic new reading of Congress’ power under the Commerce Clause while at the same time earning favor with liberals, reaffirming the Court’s independence and supplanting Justice Kennedy — who ended up in the minority — as its new power center.

A lot of the commentary suggests that Roberts’ decision, by leaving in place President Obama’s signature domestic policy accomplishment, would have George W. Bush spinning in his…uh, ranch. I have no idea whether President Bush still thinks it was a good idea to have nominated Roberts right now; but if I were him, I would. It seems clearer than ever today that Roberts was a very smart choice.

Leave a Reply