Court is — it can now be said most confidently — the
most political in American
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
would have collapsed. Its impotence might have echoed the darkest days of the ,
when President Andrew Jackson apocryphally said of the 1832 Marshall Court Worcester v decision, “John
Marshall has made his decision; now let him enforce it.” (That’s not actually
what 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.