This Justice Roberts “Switch In Time” Preserves The Legitimacy Of Nine
American democracy is in a woeful state. The chief executive job may well be decided by which candidate squeezes the most contributions from Wall Street and Hollywood.
The Congress is deservedly held in disdain by the vast majority of Americans. Its Republicans are in thrall to a wacky fringe Its Democrats seem more concerned about keeping their cushy jobs a bit longer than advancing new ideas or even well-packaged and strongly held old ones.
As for the Fourth Estate, the press, the media generally, it’s as varied and rife with views and energy as this country’s Founders could possibly have hoped — but its establishment sectors have become totally corporatized, fair and balanced, presenting two standard sets of half-truths prattled or ranted endlessly.
And then we come to the other part of our official governance line up — the courts, and especially the Supreme Court. Though its composition is determined by a political approval process, those chosen for this honor are nonetheless expected to transcend politics and make decisions based only on constitutional and precedent factors.
As long as its members do this, the court’s popularity is of no importance whatever. Indeed, its members’ lifetime tenure is specifically designed to ensure that decisions can be very unpopular without causing members to be thrown off the bench. The Supreme Court’s ultimate legitimacy, its reason for being, is thus that it isn’t perceived as just an unelected group of partisans who have somehow contrived to replace the actions of elected officials with their own personal ideology.
Until the Roberts turnabout allowing the ACA (Obamacare) to largely survive, that legitimacy was very much in doubt. It was in doubt because it seemed that on every politically charged case coming before the court, anyone at all, even if this person had no legal training, never read the Constitution, didn’t know a tort from a taco, still knew in advance how every justice would vote because their ideological views were known so well in advance.
In my view, to counteract this perception (at least for awhile) was the real reason behind this Justice Roberts’ Obamacare decision. And I say “this Justice Roberts” because of the action of another Supreme Court Justice with the same last name who saved the court in another challenge to its legitimacy.
During the early 1930s the Supreme Court struck down piece after piece of the New Deal, leading to a plan by the Roosevelt Administration to pack the court with more liberal-mind justices. In 1937, however, Justice Owen Roberts, a longtime foe of New Deal legislation, changed his vote on a piece of the New Deal that came before the court — the famous “vote in time that saved nine” from a court packing.
I was pleased this present-day Justice Roberts did what he did. It will do much to improve this nation’s health care. I’m equally pleased that he saved this too often off-the-track court from its worst inclinations.
We need at least the illusion that our Supreme Court decides on the basis of constitutional law and precedent, not the personal preferences of justices who do what they do just because they can. Such illusions are needed to keep our wobbly ship of state from tipping over still further.