The John Roberts Moment

Surprisingly nearly everyone – especially CNN – the Supreme Court upheld the most controversial aspect of President Obama’s historic health care reforms: the individual mandate. It’s incredibly good news for Obama, Democrats, progressives, Rhode Island (which is already well into the process of implementing it) all the uninsured and under-insured Americans (like me!), the country and its economy.

The hero today, though, is a conservative.

Even more surprising than the outcome is that Chief Justice John Roberts, a George W. Bush appointee to the bench, broke ranks from his fellow conservatives and wrote the majority opinion that upheld the individual mandate. It’s being called the John Roberts Moment.

According to the New York Times, Roberts’ judgment was in part a recognition that the court has “a general reticence to invalidate the acts of the Nation’s elected leaders.”

And ironic comment, given that the Roberts Court is best known for invalidating the acts of the Nation’s elected leaders!

But Roberts, more than the rest of the SCOTUS, was taken to task for exercising judicial activism and overturning precedent with the Citizens United decision. In fact, NPR quotes Rhode Island’s own Senator Sheldon Whitehouse admonishing the court for its lack of logic on Citizens United in an article largely critical of Roberts:

But critics of the court say it took a narrow question — whether a TV-on-demand documentary about Democrat Hillary Clinton could be shown in the weeks leading up to the 2008 presidential primaries — and answered it by vastly easing restrictions on corporate campaign spending.

“The court got way, way, way ahead of its skis here,” says Sen. Sheldon Whitehouse, a Rhode Island Democrat. He has filed a friend of the court brief demanding that the high court reverse its Citizens United decision.

“It was a decision they were so eager to make, but now I think they’re embarrassed by the wild discrepancy between the world as they presumed it in their written decision and the world as we see it around us, post-Citizens United,” he says.

Maybe John Roberts realized that the winds were turning on his court’s quest to remake the country in the mold of the strict Constitutionalists?

It wouldn’t be the first time that Roberts allowed perception to dictate how the High Court determined a decision. Here’s a excerpt from Jeffrey Toobin’s New Yorker article about the Citizens United decision.

“Roberts didn’t mind spirited disagreement on the merits of any case, but Souter’s attack—an extraordinary, bridge-burning farewell to the Court—could damage the Court’s credibility. So the Chief came up with a strategically ingenious maneuver. He would agree to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument, in the fall. For the second argument, the Court would write new Questions Presented, which frame a case before argument, and there would be no doubt about the stakes of the case. The proposal put the liberals in a box. They could no longer complain about being sandbagged, because the new Questions Presented would be unmistakably clear. But, as Roberts knew, the conservatives would go into the second argument already having five votes for the result they wanted. With no other choice (and no real hope of ever winning the case), the liberals agreed to the reargument.”

That’s not to say that Roberts allowed his court’s legacy to trump his reading of the law in this case, but just to point out that even Supreme Court justices play a little politics.