The New Republic

The New Republic

Is the Supreme Court’s ruling on Obamacare that good for liberalism after all? “SOME VICTORIES prepare the ground for more victories; others lay the basis for future defeats. The great question for liberals about the Supreme Court’s decision on the Affordable Care Act (ACA) is which kind of victory it is. John Roberts’s decision to spare the ACA at least allows the president this fall to claim health reform as a major achievement. But the chief justice’s new limits on the scope of the Commerce clause and federal spending powers may put future reforms at risk of being struck down and require liberals to rethink their approach to national policy. Roberts’s opinion upholds conservative positions in nearly every respect except its conclusion, and it is especially worrisome in light of the readiness of the four right-wing dissenting justices to use the same arguments to overturn the ACA in its entirety. As long as the Court has a conservative majority, the threat of a judicial veto will now hang over a wide range of liberal initiatives, including many long believed to be moderate, incremental, and constitutionally secure.” Paul Starr — “Between the Lines”
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Is the Supreme Court’s ruling on Obamacare that good for liberalism after all?

“SOME VICTORIES prepare the ground for more victories; others lay the basis for future defeats. The great question for liberals about the Supreme Court’s decision on the Affordable Care Act (ACA) is which kind of victory it is.

John Roberts’s decision to spare the ACA at least allows the president this fall to claim health reform as a major achievement. But the chief justice’s new limits on the scope of the Commerce clause and federal spending powers may put future reforms at risk of being struck down and require liberals to rethink their approach to national policy. Roberts’s opinion upholds conservative positions in nearly every respect except its conclusion, and it is especially worrisome in light of the readiness of the four right-wing dissenting justices to use the same arguments to overturn the ACA in its entirety. As long as the Court has a conservative majority, the threat of a judicial veto will now hang over a wide range of liberal initiatives, including many long believed to be moderate, incremental, and constitutionally secure.”

Paul Starr — “Between the Lines”

What lies behind Chief Justice Roberts’ decision to uphold the Obamacare mandate? AT THE END OF ROBERTS’S first term as chief justice in July 2006, I interviewed him in his chambers at the Supreme Court. Our conversation, which I wrote about in an article for The Atlantic, was wide-ranging, but Roberts returned repeatedly to one theme: his desire to restore the bipartisan legitimacy of the Supreme Court. In Roberts’s view, the Court was losing respect with the public because it issued too many rulings along partisan lines. “I do think the rule of law is threatened by a steady term-after-term focus on five–four decisions,” he said. “I think the Court is also ripe for a similar refocus on functioning as an institution,” he told me, “because if it doesn’t, it’s going to lose its credibility.” Roberts said he had been inspired by the example of his greatest predecessor, John Marshall. “He could easily have got on the Court and said, ‘I’m the last hope of the Federalists: We’re out of Congress, we’re out of the White House, and I’m going to pursue that agenda here,’” he said. “But instead he said, ‘No, this is my home now, this is the Court, and we’re going to operate as a Court, and that’s important to me.’” — Jeffrey Rosen, “Big Chief”
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What lies behind Chief Justice Roberts’ decision to uphold the Obamacare mandate?

AT THE END OF ROBERTS’S first term as chief justice in July 2006, I interviewed him in his chambers at the Supreme Court. Our conversation, which I wrote about in an article for The Atlantic, was wide-ranging, but Roberts returned repeatedly to one theme: his desire to restore the bipartisan legitimacy of the Supreme Court.

In Roberts’s view, the Court was losing respect with the public because it issued too many rulings along partisan lines. “I do think the rule of law is threatened by a steady term-after-term focus on five–four decisions,” he said. “I think the Court is also ripe for a similar refocus on functioning as an institution,” he told me, “because if it doesn’t, it’s going to lose its credibility.”

Roberts said he had been inspired by the example of his greatest predecessor, John Marshall. “He could easily have got on the Court and said, ‘I’m the last hope of the Federalists: We’re out of Congress, we’re out of the White House, and I’m going to pursue that agenda here,’” he said. “But instead he said, ‘No, this is my home now, this is the Court, and we’re going to operate as a Court, and that’s important to me.’”

— Jeffrey Rosen, “Big Chief”

“Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations. Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold.” — Jonathan Cohn, “Did Roberts Change His Vote?”
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“Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold.”

— Jonathan Cohn, “Did Roberts Change His Vote?”

What does it mean to be a successful Chief Justice? “As Roberts recognized, faith in the neutrality of the law and the impartiality of judges is a fragile thing. When I teach constitutional law, I begin by telling students that they can’t assume that it’s all politics. To do so misses everything that is constraining and meaningful and inspiring about the Constitution as a framework for government. There will be many polarizing decisions from the Roberts Court in the future, and John Roberts will be on the conservative side of many of them. But with his canny performance in the health care case, Roberts has given the country a memorable example of what it means to be a successful Chief Justice.” -Jeffrey Rosen,”Welcome to the Roberts Court: How the Chief Justice Used Obamacare to Reveal His True Identity”
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What does it mean to be a successful Chief Justice?

“As Roberts recognized, faith in the neutrality of the law and the impartiality of judges is a fragile thing. When I teach constitutional law, I begin by telling students that they can’t assume that it’s all politics. To do so misses everything that is constraining and meaningful and inspiring about the Constitution as a framework for government. There will be many polarizing decisions from the Roberts Court in the future, and John Roberts will be on the conservative side of many of them. But with his canny performance in the health care case, Roberts has given the country a memorable example of what it means to be a successful Chief Justice.”

-Jeffrey Rosen,”Welcome to the Roberts Court: How the Chief Justice Used Obamacare to Reveal His True Identity”

One can only speculate about Roberts’ motives for proceeding as he did. It is certainly possible that, like Chief Justice Charles Evans Hughes in the mid-1930s, he had one eye focused on jurisprudence and another on the standing of the institution he heads. This may be another “switch in time” that saved the Court from becoming embroiled in a full-fledged confrontation with the executive and legislative branches. “What is beyond speculation is that this comes as a massive disappointment to movement conservatives who have spent decades strengthening their position in the judicial branch with the ultimate objective of halting and reversing the growing reach of the federal government. Expect recriminations and accusations alleging that, once again, a pivotal conservative has yielded to liberal elite opinion.” -William Galston, “Conservatives’ Long March Through the Court Hits a Wall” Image via Forbes.
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One can only speculate about Roberts’ motives for proceeding as he did. It is certainly possible that, like Chief Justice Charles Evans Hughes in the mid-1930s, he had one eye focused on jurisprudence and another on the standing of the institution he heads. This may be another “switch in time” that saved the Court from becoming embroiled in a full-fledged confrontation with the executive and legislative branches.

“What is beyond speculation is that this comes as a massive disappointment to movement conservatives who have spent decades strengthening their position in the judicial branch with the ultimate objective of halting and reversing the growing reach of the federal government. Expect recriminations and accusations alleging that, once again, a pivotal conservative has yielded to liberal elite opinion.”

-William Galston, “Conservatives’ Long March Through the Court Hits a Wall”

Image via Forbes.