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THE MUSINGS OF A TRADITIONAL SOUTHERN DEMOCRAT

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Sid in his law office where he sits when meeting with clients. Observant eyes will notice the statuette of one of Sid's favorite Democrats.

Saturday, June 27, 2015

The Obamacare and marriage rulings prove Justice Roberts is no partisan

Ruth Marcus, a left-of-center columnist for The Washington Post and stand-in for Mark Shields from time to time on my weekly must-see and favorite program on PBS Friday evening Shields and Brooks, writes in The Washington Post:

Chief Justice John G. Roberts Jr. knew a torrent of conservative invective was headed his way, so perhaps praise from a left-of-center columnist is the last thing he needs.

Sorry, chief, here goes.

Roberts saved the Affordable Care Act, a second time, for the man who voted against confirming him. It was the right decision, a wise one, for the law, the court and the country.

For this, predictably, Roberts has been branded David Souter-lite. “He stands revealed as a most political Justice,” thundered the Wall Street Journal editorial board, accusing Roberts of “volunteering as Nancy Pelosi’s copy editor.”

That was among the milder critiques. “It’s time we admitted that our national ‘umpire’ is now playing for one of the teams,” said Carrie Severino of the Judicial Crisis Network.

Deep breath, folks. Roberts is no liberal squish. He’s not even a centrist squish. He’s a deeply conservative jurist, as witnessed by his impassioned dissent in the court’s same-sex marriage ruling the day after his supposed treachery on health care.

“Whether same-sex marriage is a good idea should be of no concern to us,” Roberts wrote. “Under the Constitution, judges have power to say what the law is, not what it should be.”
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I happen to agree with Roberts on health care and disagree on marriage, but his position in both is intellectually consistent in its conception of the judicial role. It behooves even those of us who believe that the court was correct in extending marriage rights to same-sex couples to think through his arguments about short-circuiting the democratic process and investing judges with policymaking powers.

And, by the way, let’s not get carried away by the remarkable string of liberal victories in the court’s final week, including an expansive interpretation of the housing discrimination law along with the health care and marriage cases.

This is not a liberal court. It’s a conservative court that occasionally, thanks to Justice Anthony M. Kennedy, swings in the opposite direction. In the run-up to the 2016 election, complacency about the court would be foolish. The next president will shape the country’s constitutional future.

But back to health care. The six-justice majority — that Kennedy would betray the cause is no longer enraging to conservatives — was correct on the law. Certainly, the phrase “exchange established by the State” was, to use Roberts’s term, “inartful.”

Yet as Roberts convincingly demonstrated, interpreting the law to make subsidies unavailable in most states would mean that “Congress made the viability of the entire Affordable Care Act turn on the ultimate ancillary provision: a sub-sub-sub section of the Tax Code.”

Rather, Roberts wrote, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

This is not judicial activism, rewriting legislation from the bench. It’s judicial deference with a brain.

I’ve been skeptical of Roberts’s famous umpire analogy because it seems to reduce judging to a mechanistic enterprise: If the judge thinks hard enough, the “correct” answer will emerge. That’s too simplistic. The capacious phrases of the Constitution, as the marriage case demonstrates, inevitably leave space for judgment and ideology.

But it is also true — and this is one reason that Roberts deserves praise — that there are times when the correct legal result is reasonably clear. It is then the judge’s responsibility to follow it, no matter what his or her policy preference.

Does anyone think that John Roberts, citizen, or John Roberts, member of Congress, would vote for the Affordable Care Act? Or President Obama? Of course not. The health-care ruling helps — or should help — undermine the cynical view that all judges are mere partisans in robes, reflexively ruling for their team.

Which brings me to the final point, about how the health-care ruling is good for the court and the country. Justices, and the chief justice in particular, have a duty to consider and safeguard the court’s institutional role. Roberts did so in both health-care rulings, protecting the court from being accused of overreaching and of inserting itself into political arguments.

They also have a responsibility to consider the practical implications of their actions. A decision invalidating subsidies on federal exchanges would have created turmoil for millions of Americans, a step the court should not take lightly.

I don’t always — actually, I don’t often — agree with the chief justice. I do respect logic and consistency.

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