David Hoppe

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:: Getting it right

John Roberts’ judicial restraint

By David Hoppe

Some people rise to an occasion. Others are run over. Take Congressman Mike Pence, for example. Upon learning the Supreme Court had voted to uphold Obamacare, the president's health care reform legislation, Pence fumed into a meeting with his fellow Republicans on Capital Hill and compared the high court's decision to the 9/11 terrorist attacks.

Now we know how Pence, the man who would be Indiana's next governor, handles pressure. He unleashes his inner two year-old.

Long Beach, Indiana's John Roberts, on the other hand — the Chief Justice of that same Supreme Court and the man who cast the deciding vote in favor of Obamacare's constitutionality — put principle ahead of politics and, for the moment, reinvested our three-headed system of government with some sorely needed dignity.

Roberts is a Republican, appointed by George W. Bush. Then Senator Obama voted against Roberts' confirmation. Speculation had it that Roberts would be one of the justices who would find Obamacare unconstitutional.

Following court decisions awarding the presidency to George W. Bush after the 2000 election, and citizenship to corporations, skewing political campaigns in favor of the big and the rich, not to mention the public hobnobbing of justices like Scalia and Thomas with highly partisan political cronies, there was concern the Supreme Court was becoming more legislative in its rulings than judicial.

But in voting to uphold the Patient Protection and Affordable Care Act, Roberts lived up to the promise he made during his confirmation hearings: to serve as an umpire, calling the constitutional balls and strikes as best he saw them.

Roberts' vote is valuable for a number of reasons.

It is difficult to overstate how certain the so-called experts were that the court would overturn Obamacare. It seemed all anyone wanted to talk about in the days leading up to the decision was how the Obama Administration would deal with the blow the court seemed about to deliver. So sure were the media's talking heads about the outcome that CNN even got the news, when it came, wrong. It first announced the individual mandate had been voted down when, in fact, its rationale under the Constitution's Commerce Clause was what had been debunked.

In restoring an element of unpredictability to Supreme Court deliberations, Roberts has resuscitated the court's judicial credibility. If everyone believes they can read the court in advance, that means the court's interpretation of the Constitution is calcified. This may be how a judicial traffic cop like Antonin Scalia likes it — reducing principles to right and wrong, instead of Roberts' balls and strikes. But this reduces the court to an ideological rubber stamp. Roberts' decision was a vote for judicial independence.

It was also a vote that recognized that the court exists — its Supreme appellation notwithstanding — within a larger social context. Most of us will likely never know how Chief Justice Roberts feels about Obamacare. It's possible he can't stand it. But, in effect, Roberts' vote reminds a society that's ready to sue anyone and everyone for all kinds of slights, real and perceived, that just because you don't like a law doesn't mean that it's illegal.

The debate over health care reform was contentious, to say the least. The Obama administration did an awful job of explaining it. And Republicans weren't above lying about it in order to score political points in the 2010 elections. Remember Death Panels?

But health care reform is essential to assure the personal security of millions of Americans. Years of hoping the private sector would make health care accessible and affordable have only made matters worse. Government intervention was necessary and though Obamacare's impact remains to be seen — the law, after all, has yet to go into effect — it was voted in through the legislative process. The Roberts decision says, “You know what? The process was valid.” If we are to be a country of laws, then it's time for everyone to suck it up and move on.

Perhaps the most welcome thing about the Roberts' decision was the way it calls Obamacare by its proper name: a form of taxation. It's a sad commentary, not only about our politics, but our collective citizenship, that Americans refuse to engage in constructive debate about the necessity of taxes and what we do with them. President Obama resorted to use of the word “mandate,” a term derived from the insurance industry, because he said he could reform health care without a tax increase. This was dishonest, but probably necessary, given the public's refusal to face what it actually costs to have a First World quality of life. It's a large part of why the creation of a single-payer system was never really up for discussion.

Chief Justice Roberts' decision will doubtless play a part in November's election. Republicans have vowed to repeal Obamacare, although they may reconsider this, since it will provide Democrats with fresh opportunities to explain the bill's virtues. The more people know about Obamacare, the more they may come to want it. Which, come to think of it, is rather like the lesson in cool-headed judicial restraint Roberts taught last week.