At first there were sparks. Now, conservatives’ ire over the health care ruling and over Chief Justice John Roberts’s deciding vote has exploded into a firestorm of criticism that he acted in a “political” way.
Addressing this fury, analysts Dahlia Lithwick and Barry Friedman suggest in Slate that ”all the sturm and drang about what Roberts did—or did not do—is patently ridiculous,” and “the current effort to delegitimize him for weighing all the evidence and making a considered opinion is the best single argument around for maintaining life tenure for Article III judges.”
The court’s 5-4 ruling upheld the highly controversial health care law’s central provision, requiring almost all Americans to obtain health insurance or face a penalty.
The conservatives’ reaction grew more fiery amid speculation and an unconfirmed news account that Justice Roberts had switched his vote (see Gavel Grab) to uphold the health care reform’s central provision. Here are some examples:
- “The fact that this decision was apparently political, rather than legal, completely undermines its legitimacy as a precedent,” Randy Barnett, a Georgetown Law Center professor, told the Washington Post. Barnett had a central role in shaping the legal strategy to challenge the Affordable Care Act.
- “If Roberts did indeed succumb to pressure, he should resign,” John Eastman, a Chapman University law professor and former clerk to Justice Clarence Thomas, told the Los Angeles Times.
- A Wall Street Journal editorial on Monday, more outraged than a similar one days earlier, said the court ruling “is far more dangerous, and far more political, even than it first appeared last week.”
Legal analyst Lithwick and NYU law professor Friedman offered an alternative framework for looking at the court ruling, the chief justice’s role, and the reaction from conservatives.
When a decision in a hotly debated, high profile case could go either way as a matter of law, the authors say, then something other than precedents alone must decide a case. They admit they’re guessing when it comes to Justice Roberts’s thinking, but they outline this scenario:
“[S]uppose after considering the matter at length—isn’t that what he’s supposed to do on a question of this moment?—the chief justice decided it was best for court and country to vote to uphold the health-reform law. And suppose he did so because at bottom he believed an issue that could go either way legally should be fought out in the political arena; that there was at least a plausible constitutional basis for so concluding; and that the risk to the court’s legitimacy was too high to vote to strike the mandate.”
“The point is only that on a nation’s high court, in which legal precedents rarely decide cases, what one calls law and what goes in the vernacular by politics often come together. That’s why all the sturm and drang about what Roberts did—or did not do—is patently ridiculous. He did what justices, and especially chief justices, do.”
The authors don’t stop there. They are troubled that sources for this week’s news account, stating that Justice Roberts had switched his vote, might come from within the court, and also that other conservative justices may have turned their backs on the chief justice:
“[A] high-level leak on a decision of this magnitude this soon is unprecedented. And, frankly it is rather nauseating to anyone who worries about preserving the integrity of the court.
“On the high court, there’s politics and then there’s politicization. There’s a difference between law and politics coming together on the court, and the possibility that someone is working from within the institution itself to further political ends. Or personal pique. … The court has always been in politics and has always been politicized, but has remained pretty leak proof precisely because the justices understand the devastating effect this kind of politics will have on the institution. That’s mistake No. 1 by whoever spoke to (CBS Reporter Jan] Crawford.
“Mistake No. 2 is if anyone thinks there is profit in the conservatives turning their back on the court’s fifth conservative vote.”
Related media commentary included Michael Gerson, “Roberts’ Alternate Universe,” in The Washington Post; Eric Golub, “The ‘Legitimacy’ of the Supreme Court,” in The Washington Times; William McGurn, “Roberts Taxes Credibility,” in The Wall Street Journal; Andrew Rosenthal, “John Roberts Conspiracy Theories,” in The New York Times; and Thomas Friedman, “Taking One for the Country,” in The New York Times.