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Rage at Roberts won’t end soon

Chief Justice John G. Roberts Jr.  |  Stephan Savoia~AP

Chief Justice John G. Roberts Jr. | Stephan Savoia~AP

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Updated: August 7, 2012 6:21AM



Admittedly, it was not standard fare for a Fourth of July party, but time and again the conversation under a sweltering sun drifted back to the U.S. Supreme Court’s health-care ruling.

This being a mostly conservative crowd, much perplexity and dissatisfaction were expressed about Chief Justice John Roberts finding a way to save the Affordable Care Act from a constitutional challenge. It was another bit of evidence that the firestorm ignited by the controversial ruling won’t go away, likely making ObamaCare a major issue, albeit far behind the economy, for the fall election.

The consensus over beer and ham in a suburban Chicago backyard was that the decision Roberts made was a political one. That reflected the attitude of the big voices of conservatism such as the Wall Street Journal editorial page, which labeled Roberts a “politician” and didn’t mean it as a compliment, and National Review, which called the ruling “Roberts’ folly.”

The gist of the argument is that Roberts rescued the health-care law out of an exaggerated deference to Congress or to protect the court from accusation of being, well, too political with a decision against ObamaCare along the court’s usual 5-4 conservative-liberal divide.

The latter argument is particularly galling to conservatives who believe, with much justification, that the nation’s mainstream media and commentariat view court decisions favoring liberal positions as magnanimous and wise and those supporting arguments of the right as partisan.

Roberts opened himself up to criticism with the legal contortions he employed to rule that the act’s mandate requiring every American to buy insurance could be construed as a tax despite the insistence of Congress that it was a penalty. Yet, it is also folly to suggest the court is, or should be, immune to every influence of politics.

Roberts noted in his ruling that the court’s precedents required that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” That history acknowledges a role for politics, recognizing that — in a republic — sovereignty in most cases should rest with the elected representatives of the people.

Still, that leaves room for debate about the difference between a respect for the separation of powers and a craven retreat by a court out of fear of political unpopularity from its responsibility to rule on the legal merits of a case.

I do believe that principle guided Roberts and not the ugly, ham-fisted attempt by President Barack Obama to intimidate the court by declaring — amazingly for someone who taught constitutional law — that it would be unprecedented for the court to overturn an act of Congress.

That the ObamaCare challenge was a confrontation that couldn’t escape extraordinary political implications was obvious from the start. When it was argued before the court, I speculated in a March 27 column about “the possibility, albeit remote, that the court might kick the dispute down the road for a few years” to let politicians resolve the questions surrounding legislation that had turned out to be profoundly unpopular.

A major reason for that unpopularity is that ObamaCare passed with only Democratic Party input and votes, in contrast to the bipartisan legislating of the other entitlements, Social Security and Medicare.

Obviously, Roberts and the other justices didn’t want, or couldn’t find, a way to avoid ruling on the issue. But Roberts’ tortured decision still kicks the ultimate judgment on ObamaCare back to the voters and the politicians — where it belongs.



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