Analysis: Roberts sent message of court's legitimacy

Article by: DAN BALZ , Washington Post
Updated: June 30, 2012 - 10:38 PM

Chief Justice John Roberts exercised the leadership of his position, protecting his institution at the same time. It's a lesson that's badly needed in Washington.

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U.S. Supreme Court Chief Justice John Roberts

Photo: Brendan Hoffman, Associated Press; NYT

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Chief Justice John Roberts delivered more than a historic ruling with his opinion upholding the constitutionality of the Affordable Care Act. Deliberately or not, he sent a message to politicians about the importance of protecting the vitality and reputation of public institutions.

That's a message badly needed in Washington and nowhere more so than in the Capitol building that sits across the broad lawn from the Supreme Court. Congress is an institution designed to represent the people. It has become a body where too often its members act as if they represent only Republicans or only Democrats. No wonder so many Americans hold it in such low regard.

It is useful to remember that, in the run up to the ruling, one strong subtext of analysis was what a decision striking down President Obama's health-care law would do to the court itself. Would the court, under those circumstances, be vulnerable to the charge that it had become as politicized as the other branches of government?

Connecting the dots

Fearing defeat, Democrats were preparing to make the court a target in the fall election. They were connecting the dots, from the ruling that handed the presidency to George W. Bush, to the Citizens United decision that helped unleash a torrent of big-money contributions in this year's election cycle (a huge share of the money going to GOP super PACs), and, finally, to health care and a decision that would have been seen as toppling the president's signature accomplishment.

No Supreme Court is ever immune from the political currents swirling at any given time. But the assumption of most Americans is that the court, of the three branches of government, should be insulated from partisan politics. Its decisions may offend one side or the other, but its legitimacy should remain inviolate.

Had a majority of the justices struck down Obamacare, the court -- fairly or unfairly -- would have become a bigger issue in the presidential campaign than usual and in ways that could have been damaging to its authority.

How much the court's place and reputation entered into Roberts' thinking may never be known. Someday, the full story of how he found his way to writing a majority opinion on the health-care case with the four liberal justices may become known. The opinion he wrote was, in the estimation of some legal experts, either tortured or fiendishly clever in maneuvering toward an outcome that upheld the constitutionality of the health care law while attempting to adhere to conservative principles aimed at restraining the powers of the federal government.

One can only imagine how Obama, the former constitutional law professor, analyzed the opinion and how he evaluated the motivations of the chief justice who, surprising to some, handed him a major legal and political victory in the middle of his tight re-election campaign.

A particularly testy relationship

That was all the more intriguing because the president and the chief justice have had a particularly testy relationship. It began with Obama's speech outlining his opposition to Roberts' nomination in 2005. He said Roberts had the intellect and temperament to sit on the court but questioned whether he had the values and heart not to side with the strong over the weak.

Their relationship may have reached its nadir when Obama publicly rebuked Roberts and the court for the Citizens United decision as the justices sat before him in the House chamber during his 2010 State of the Union address.

Roberts' detractors believe that he reinterpreted what Congress said in the legislation to find a legal justification for upholding it -- by defining the individual mandate as a tax. For that, he is taking considerable heat from conservatives. But he also handed Republicans a new justification to attack Obama for raising taxes.

Roberts wrote that he was not making a judgment about the wisdom of the policy; he said only that it was constitutionally permissible. He has thrown the debate over health care back into the political arena. Those who looked to the court to redress political grievances over a health-care law that was passed on a party-line vote have the opportunity to win their case in the court of public opinion, which is the right place given all its history.

In his act of judicial activism, as some of his critics have described it, Roberts demonstrated restraint of a different kind -- a bow to the political branches of government to exercise their powers within the broad framework of the Constitution. If it was judicial activism, it was in the service of institutional deference. The chief justice helped remind the country that each branch of government has particular powers, responsibilities and obligations. The legislative branch is designed for partisan debate but, ultimately, it is there to make laws and solve problems that it alone can solve.

On one of the most politically charged cases in years, the chief justice chose to exercise the leadership that goes with his position. He may have protected his institution at the same time. The members of Congress have not done that very often in recent years. That is one lesson they can take away from the court's historic ruling.

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