Roberts chooses conservative over extreme

John Roberts has one iron in the fire that none of the other conservatives on the Supreme Court have. As chief justice, it is legacy that will primarily characterize the years in which  SCOTUS is referred to as the “Roberts Court.”

There are at least two factors that may explain Roberts’ decision to uphold the Affordable Health Care Act. His reasons may have been difficult for many to understand, but they were real.

First, he is aware of the word “embarrassment.” For the Court to have ruled in opposition to the Affordable Act, the past twenty years under Roberts and his predecessor, William Rehnquist, would have been a run of one conservative ruling after another. Whether the case had to do with campaign finance reform, reproductive rights, and most importantly, selecting the President of the United States, the Court consistently leaned to the right and made its decision from that position. A different court might have made Al Gore president, better protected women’s rights, and prevented campaign contributions from being like money at a slot machine. Roberts knew that all these decisions represented more than considered thought and reason. They were political bias.

Roberts may be a conservative, but he is not a fanatic. Washington is densely populated with individuals who are intensely mean and have little regard for the common good. On Roberts’ court, he need do no more than look to the right and see Antonin Scalia, Clarence Thomas, and Samuel Alito. Across the street on Capitol Hill, they come by the scores, perhaps hundreds with the likes of Eric Kantor and Tom Coburn.

One explanation for Roberts’ ruling is that he had spent enough time with “bad company.” Being with Scalia and Kantor, regardless of whatever merits their arguments might have, would not only show a blatant conservative slant, but it also would reflect poorly upon Roberts’ court. He needed to do something to separate himself from his right wing colleagues, and he did so and maintained an important degree of wisdom and dignity.

The second reason is that while he may have felt that a federal mandate on health care was unconstitutional, he had some degree of empathy for those who suffer from our flawed health care system. In his most clear moments, he may have also realized that a Medicare for all system might have been the cleanest, most effective, and most fair way of providing a fair measure of health care for our citizens. For nearly eighty years, New Deal legislation has been held constitutional, and it’s been over forty years since Great Society legislation such as Medicare passed the Supreme Court constitutional muster. Between the lines of his majority ruling is a certain direction toward the single payer system that so many liberals wanted – simply include health care coverage in the payroll tax – Medicare for all.

Roberts is not an island unto himself. His leanings are conservative, but he knows when enough is enough. He may have a kindred spirit in House Speaker John Boehner. How many times has Boehner been able to negotiate agreements with President Obama but have it thrown under the bus by Kantor and other Tea Party members of Congress? Boehner is smart enough to know that effective governance requires a measure of bi-partisanship. You win some and you lose some. Obama knows the same, and recently he has been choosing winning whenever possible. It is clear now that Roberts knows that there is a limit as to how far a ship of state can list to the right.

Roberts is conservative by nature. That can be difficult for some to understand, because he seems like such a nice guy, and we generally don’t associate kindness with decisions that do harm to those who can least help themselves. But even he has limits. The person with a pre-existing heart condition or who is thrown out of a hospital because his or her insurance expenses have “maxed out  may be too much for him to take. It may be philosophical for him, or it may be from personal experience. But somehow, for a variety of reasons, he was not going to let the Affordable Care Act die on his watch.

At the risk of being self-serving, some of us saw this coming. Roberts needed a break from decisions that are plain mean. Like all of us, he has to look  at himself in the mirror and find a way to sleep at night. He should sleep well now, and we should not be surprised by his vote and opinion on the Affordable Care Act. Hopefullmy there are more decisions from where this one came.

Arthur Lieber Arthur Lieber (308 Posts)

Since 1969, Arthur Lieber has been teaching and working in non-profit educational organizations. His focus has been on promoting critical, creative, and enjoyable learning for students in informal settings. In the 2010 mid-term elections, he was the Democratic nominee for US Congress from Missouri’s 2nd Congressional District.