TNR, Jeffrey Rosen : In praise of Chief Justice John Roberts : "When I teach constitutional law, I begin by telling students that they can’t assume that it’s all politics. To do so misses everything that is constraining and meaningful and inspiring about the Constitution as a framework for government."

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The New Republic
Welcome to the Roberts Court: How the Chief Justice Used Obamacare to Reveal His True Identity
June 29, 2012

By Jeffrey Rosen

Jeffrey Rosen has been the legal affairs editor of The New Republic since 1992. He is also a professor of law at George Washington University and a nonresident Senior Fellow at the Brookings Institution. His most recent book is The Supreme Court: The Personalities and Rivalries that Defined America, the bestselling companion book to the PBS series on the Supreme Court. He is also the author of The Most Democratic Branch, The Naked Crowd, and The Unwanted Gaze, which The New York Times called “the definitive text on privacy perils in the digital age.” Rosen is a graduate of Harvard College, summa cum laude; Oxford University, where he was a Marshall Scholar; and Yale Law School. His essays and commentaries have appeared in The New York Times Magazine, The Atlantic Monthly, on National Public Radio, and in The New Yorker, where he has been a staff writer. The Chicago Tribune named him one of the ten best magazine journalists in America and the L.A. Times called him “the nation’s most widely read and influential legal commentator.”

Welcome to the Roberts Court: How the Chief Justice Used Obamacare to Reveal His True Identity

Some excerpts :

In 2006, at the end of his first term as Chief Justice, John Roberts told me that he was determined to place the bipartisan legitimacy of the Court above his own ideological agenda. But he recognized the difficulty of the task. “It’s sobering to think of the seventeen chief justices,” he said. “Certainly a solid majority of them have to be characterized as failures.”

Specifically, he was concerned that his colleagues were too often handing down 5-4 decisions that divided along predictable party lines, which made it hard for the public to maintain faith in the Court as an institution that transcends politics. Roberts pledged to try to persuade his colleagues to avoid party line votes in the most divisive cases. Roberts said he would embrace as his model his judicial hero, John Marshall, who sometimes engaged in legal “twistifications,” to use Thomas Jefferson’s derisive phrase, in order to achieve results that would strengthen the institutional legitimacy of the Court.

In the health care case, Roberts produced a twistification of which Marshall would have been proud. He joined the four liberals in holding that the Affordable Care Act's individual mandate was justified by Congress’s taxing power even though he also joined the four conservatives in holding that the mandate was not justified by Congress’s power to regulate interstate commerce.

For bringing the Court back from the partisan abyss, Roberts deserves praise not only from liberals but from all Americans who believe that it’s important for the Court to stand for something larger than politics. On Thursday, Roberts did precisely what he said he would do when he first took office: He placed the bipartisan legitimacy of the Court above his own ideological agenda. Seven years into his Chief Justiceship, the Supreme Court finally became the Roberts Court.

IT WOULD BE easy, of course, to question the coherence of the combination of legal arguments that Roberts embraced, but it would also be beside the point: Roberts' decision was above all an act of judicial statesmanship. On both the left and the right commentators are praising his “political genius” in handing the president the victory he sought even as he laid the groundwork for restricting congressional power in the future.

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As Roberts recognized, faith in the neutrality of the law and the impartiality of judges is a fragile thing. When I teach constitutional law, I begin by telling students that they can’t assume that it’s all politics. To do so misses everything that is constraining and meaningful and inspiring about the Constitution as a framework for government. There will be many polarizing decisions from the Roberts Court in the future, and John Roberts will be on the conservative side of many of them. But with his canny performance in the health care case, Roberts has given the country a memorable example of what it means to be a successful Chief Justice.

   
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