OK, I was wrong about the Supreme Court’s vote on health care. For months, I’ve been confidently predicting a 6-3 vote upholding the law.
But I was right on about Chief Justice John Roberts, who I insisted would do the right thing — constitutionally speaking — and vote to uphold the power of a democratically elected Congress to enact national health-care legislation.
So pardon me while I bask in the unaccustomed light of being right about something for a change. A lawyer friend has even taken to calling me the Great Prognosticator in light of my seeming clairvoyance regarding the chief justice.
Actually, like the famous fortune tellers of old, from Sybil to Miss Cleo, I figured you have to go on the record with a guess now and again. If you’re right, you can tout your success, as I’m doing here. And if you’re wrong, who’s to remember? Not that long ago, I confidently predicted Martina Navratilova would win the Mirror Ball on “Dancing with the Stars.” (I thought she was Russian.) So of course I stopped blogging about the show when she was the first contestant voted off.
For good or ill, though, we’re stuck with Roberts, since we can’t vote people off the Supreme Court, despite the fulminations of some conservative commentators outraged by the chief justice’s vote. The conventional wisdom is that the court’s decision is a legal victory for Obama and a political win for Romney, since it gives the Republican something else to run against. But I think the decision is a victory for the court itself, or at least for Roberts, who proved himself to be the thoughtful, intellectually honest jurist I hoped he was.
When Roberts was nominated to the court in 2005, I remember Harvard law professor Laurence Tribe being interviewed on television. Tribe is considered one of the most liberal legal thinkers around, far too liberal to ever be nominated to the Supreme Court himself. So the interviewer was clearly expecting fireworks.
But Tribe wouldn’t bite. He insisted Roberts was a first-rate scholar and an honest arbiter of the Constitution, even if they didn’t always see eye to eye on that document’s meaning. He flattered himself to consider Roberts his friend, he said, and predicted he would make a first-rate justice. I figured if a lefty like Larry Tribe liked the guy despite his conservative views, he had to be first-rate.
Roberts’ first term, though, gave a lot a people pause, and in his otherwise fair and highly-readable book, “The Nine: Inside the Secret World of the Supreme Court,” Jeffrey Toobin depicts Roberts as a conservative ideologue determined to undo decades of good law since the New Deal.
Since that first term, though, Roberts has seemed increasingly centrist, to me, if not to Toobin, who penned his own I-got-it-wrong in light of Roberts’ vote. Certainly, the court can have that effect on people: Given the awesome responsibility of being the final arbiter of American law tends to make the justices more careful and conservative, in the real meaning of that word, and less likely to be swayed by ideological predilections. That’s why it is so famously hard to predict how justices will vote once they get a seat on the Supreme Court.
And Roberts’ vote the other day on immigration, upholding the notion that federal action trumped state law, marked him in my book as a real jurist rather than a political hack. That federalism question, after all, was supposed to have been settled by the Civil War.
And in the health care case, Roberts’ opinion for the narrow 5-4 majority assumes what I think is a similarly settled question — that Congress’ power to tax allows for what’s called the health-care mandate. The politicians who passed the law didn’t want to call it a tax, but that’s exactly what it is.
“Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” Roberts wrote.
So Roberts’ opinion doesn’t mean the government can make you eat broccoli or create death panels or anything else. It just means the government can tax you if you don’t have health insurance, and that’s hardly a novel notion in the law, whatever the far right wants to pretend.
And whatever else gets said about him this week, the chief justice took the truly conservative position that to have overturned the law would be to legislate from bench, no matter whose ox is being gored. If people don’t like the health care law, let them elect people who will repeal it. That’s not the job of unelected judges, conservatives are quick to remind us when it is laws they like that are at stake.
I know that ugly politics play a role on the bench, but I like to think that sometimes, at least, the law stands for more than the political preferences of the party with the most judicial appointees. That’s the kind of courts they have in other countries less free than ours — the kind that rubber stamp whatever the ruling party wants.
Real democracies might be a bit more messy. But they trust the people, not the judges to clean things up. Personally, I’m not enamoured of the new health care law. It’s too early to tell, I’m told, but in the short run at least, my health care insurance has only gone up.
But Roberts’ principled opinion makes me want to dance, and makes him, in my book, a real star.