John Roberts, Moderate Hero?
Don't expect the Chief Justice to emerge as a stealth liberal. The health-care decision shows he's really a pragmatist.
The conventional wisdom was shockingly, pathetically wrong.
But some folks have long had an inkling that the chief justice was no ideologue.
When John Roberts was nominated to be chief justice in 2005, a very prominent liberal lawyer told me that he was reassured. Roberts, he noted, was a practicing attorney with years of trials under his belt -- unlike the academic Antonin Scalia or Clarence Thomas with his slew of government jobs and no real private practice experience. The real world experience of Roberts, this liberal lion thought, would make the Chief -- and the court -- less rigid ideologically.
Now that Roberts has saved Barack Obama's health-care law and maybe his presidency, that looks prescient. He saved the individual mandate, choosing to see it as a tax hike and not a mandate, and thus legal. It's like that moment in the Cuban Missile Crisis when President Kennedy got two letters from the Soviets, one accommodating and one bellicose. He chose the one he wanted.
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Sure, we don't know how John Roberts will evolve in the years ahead. Justices change. But he's shown a deference to federal authority in this case -- and in the Arizona case -- an aversion to being like the "nine old men" who tortured Franklin Roosevelt, throwing out key elements of the New Deal. As a former DOJ lawyer, as well as longtime veteran of the firm Hogan & Hartson, he seemed to have a deference to arguments and not ideology.
Liberals who were shocked by the sweeping decision on Citizens United, may start to think they've found their Earl Warren or William Brennan -- justices appointed by a Republican president who became liberal icons.
But Roberts may turn out to be more of what he said he would be -- an umpire, not a player, and someone who doesn't want the Court to be too immersed in election year politics. (One wonders what he might have done with Bush v. Gore.)
But things change. Anthony Kennedy cozied up to the conservatives in this case, and Roberts may prove terribly disappointing to liberals next term. He's not a pure judicial restraint man. He's not an originalist like Scalia. But he seems, as that liberal lawyer I knew told me, to have the temperament of a litigator.
Read The Atlantic's full coverage of the Supreme Court's health-care decision.