A switch in time that saved one...
To console themselves and shake off their bewilderment and shock of betrayal, many are trying to explain away why Chief Justice Roberts single-handedly amended the U.S. Constitution to authorize Obamacare. Some say it’s “judicial modesty.” Others say it’s upholding the institutional “legitimacy” and reputation of the Supreme Court. Still others say it's a stroke of genius.
Wait a minute. Is modesty supposed to be self-forgetful or self-important? Is it modest for a sentry to open wide the gate when hostile forces launch a sneak attack against the fledgling outpost? Imagine the sentry quietly lifting the entry barrier with one hand, while the other hand points a loaded pistol at the enemy. He then gingerly backs away as the enemy pour in to pillage and destroy.
Well, the sentry didn’t want to call attention to himself!
Where was this precious modesty when Roberts voted to overturn portions of Arizona’s immigration law and berated the City of Indianapolis in cases handed down just days or weeks before? Maybe “judicial modesty” means discreetly electing not to pick on someone your own size, like Congress or the President of the United States... Because Arizona and Indianapolis have no reciprocal check on the U.S. Supreme Court or a substantial presence inside the Beltway, their laws survive only by the sufferance and conceit of federal judges.
As for institutional legitimacy, isn’t an institution acting legitimately when it performs, rather than abandons, its intended institutional function? If it doesn’t, then people would rightly question its legitimacy or at least the qualifications of those leading it. That’s what Alexander Hamilton thought anyway. He said in Federalist 78, “[L]iberty would have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.” In arguing for the justices’ life tenure, Hamilton warns of the inherent weakness of the court: “[I]t is in continual jeopardy or being overpowered, awed or influenced by its coordinate branches [i.e., Congress and POTUS.]”
Does anyone doubt that’s what happened here? Egged on by the President, the Chattering Classes unleashed their furious scorn and heaped abuse on Chief Justice Roberts and Justice Kennedy until one of them caved. (The Chattering Classes know they already have the four liberals in their hip pocket.) It’s abundantly clear Chief Justice Roberts doesn’t believe the flimsy, contradictory, almost incoherent taxation argument that he used as a pretense to uphold Obamacare.
As for brilliance, Roberts’s Commerce Clause defense means little in the grand scheme of things. Liberals have no compunction of conscience about overturning conservative precedents. They’ve been doing it more or less since the New Deal. In one famous case another Justice Roberts abandoned his constitutional scruples because FDR was threatening to pack the nine-justice Supreme Court with six more justices. FDR was very desirous of helping the court with its workload, you see. Justice Owen Roberts changed his vote in a Commerce Clause case and began voting FDR’s way. After that FDR relented. That sordid episode became known and is taught in law school as “The switch in time that saved nine.”
That's eight more than were saved last week.