The Roberts
Court is — it can now be said most confidently — the
most political in America n
history. Today’s surprising — to almost everyone — upholding of the Affordable
Care Act is proof that it’s even more politicized than we thought.
If the decision had gone the way most people expected — with
Chief Justice John Roberts Jr. siding with the majority to overturn large
portions of ACA (or the whole thing entirely), Democrats and Republicans would
have (rightly) viewed the Roberts Court as an arm of the Republican Party’s
ultra-conservative wing.
The Court’s standing in public opinion, and the respect for
the institution across America ,
would have collapsed. Its impotence might have echoed the darkest days of the Marshall CourtWorcester v Georgia Jackson
said, but it’s close.)
Roberts is a scholar of Court history, and knows well the
perilous ground on which he treads. So in a startling move that landed him far
to the political left of Justice Anthony Kennedy (who uncharacteristically took
up an absolutist right-wing opinion), Roberts moved to save his Court — and his
reputation — from certain denigration with the epithet “politicized.”
Unfortunately, the nature of his decision — because it was
based not on Constitutional scholarship nor case law nor even the arguments in
the case before the Court — was political, and most cravenly so. He ruled on a
major issue of law and principle for reasons of reputational and political
ends.
So in seeking to protect the Court from allegations that it
was overly political, Roberts has in fact confirmed what he sought to disprove.