WASHINGTON — In one of his characteristic conniptions about people who frustrated him, Theodore Roosevelt, progressivism’s first president, said of Justice Oliver Wendell Holmes, “I could carve out of a banana a judge with more backbone than that.” TR was as mistaken about Holmes’ spine as are various progressives today about Chief Justice John Roberts’.
They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional. The crucial question is whether Congress exceeded its enumerated power to regulate interstate commerce when it mandated that individuals engage in commerce by purchasing health insurance.
Justice Anthony Kennedy is generally considered today’s swing vote, but his acerbic first question to the administration’s lawyer during the second day of oral argument changed assumptions: “Can you create commerce in order to regulate it?”
Concluding that Kennedy might be disposed to overturn the mandate, some Obamacare defenders decided that Roberts’ vote will be decisive. They hope to secure it by causing Roberts to worry about his reputation and that of his institution.
Recently, for example, Vermont’s Pat Leahy, chairman of the Judiciary Committee, delivered a Senate speech defending the constitutionality of what he calls the “personal responsibility requirement.” (This is his Orwellian appellation for the mandate, whereby government coercion nullifies personal choice regarding insurance.) After 37 years in the Senate, Leahy probably no longer knows when he sounds insufferably patronizing, as he did when he said that during oral argument he thought Roberts “seemed well aware of the significance of ‘the Obamacare’ decision.” And “I thought I saw a chief justice who understands the importance of this case to all Americans.” And Roberts “seemed to understand” the deference owed to Congress.
Leahy intimated that overturning Obamacare would be as momentous, as divisive of the nation and as damaging to the court as was Bush v. Gore, which he asserts “shook the confidence of the American people in the Supreme Court.”
But surely a striking fact about that decision is how equably Americans accepted it. This testified to the court’s durable prestige, which is a function of the court’s immunity to pressures from politicians. Public approval of the court is above 50 percent, that of Congress below 20 percent.
Leahy unsubtly intimated that to avoid “another 5-4 decision” Roberts should emulate “the leadership that Chief Justice Warren provided in the unanimous decision in Brown v. Board of Education.” It is, however, passing strange to compare the Obamacare case with Brown, implying that a less-than-unanimous decision would be dangerous.
The school desegregation case overturned the social order of an entire region and accelerated the transformation of the nation’s cultural norms. Obamacare is just an unpopular law enacted by grotesque logrolling (securing three Democratic senators’ votes with the “Louisiana Purchase,” the “Gator-aid” and the “Cornhusker Kickback”). Furthermore, Obamacare passed because grossly corrupt conduct by Justice Department prosecutors in the trial of Republican Sen. Ted Stevens of Alaska had cost him re-election.
Leahy tutored Roberts about “appropriate deference” to “the elected branch,” vacuously admonished him to be “a chief justice for all of us,” and absurdly asserted that the mandate is “consistent with the understanding of the Constitution” that “the American people have had for the better part of a century.” Jeffrey Rosen of George Washington Law School, writing in The New Republic, topped Leahy’s rhetorical extravagance by saying this is Roberts’ “moment of truth” because if the court overturns Obamacare 5-4, Roberts’ “stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.”
Oh? Viewed by whom? Perhaps by people who consider it “ideological” and somehow reprehensible that in the last full term, conservative Justices John Roberts and Sam Alito voted together 96 percent of the time, but who consider it principled and admirable that Justices Sonia Sotomayor and Elena Kagan voted together 94 percent of the time. Like-minded justices agree. So?
Why, exactly, would it be less “divisive” for the court to uphold the broadly disliked Obamacare 5-4 than to overturn it 5-4? But whether Obamacare is liked or detested is entirely irrelevant. The public’s durable deference toward the Supreme Court derives from the public’s recognition that the court is deferential not to Congress but to the Constitution.
Concerning which, it is cheeky of Rosen, a liberal, to lecture Roberts about jurisprudential conservatism, which Rosen says requires “restraint,” meaning deference to congressional liberalism. Such clumsy attempts to bend the chief justice are apt to reveal his spine of steel.
George Will’s email address is georgewill@washpost.com.
