Commentary: John Roberts, the man with two brains
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Published: 03-Jul-2012

Chief Justice John Roberts is the man with two brains – a serious jurist who, in the most significant controversy of his tenure, blinked, awarding victory to President Barack Obama and the liberal wing of the Supreme Court. 

For this, Roberts is praised by Court-watchers that have for six years denounced him. They are those Justice Felix Frankfurter referenced, in a letter to a former law clerk: “I can assure you that explicit analysis and criticism of the way the Court is doing its business really gets under their skin.” 

In recent days, conservatives -- those who lionized Roberts for six years – find themselves engaged in “explicit analysis and criticism of the way the Court is doing its business.” 

It is interesting that both fans and critics of the “ObamaCare” case seem to share one important assumption: That it is the job of judges to solve tough problems for us.

Has Roberts the conservative become a liberal because of this consequential error concerning the constitutionality of the Affordable Care Act? 

I make points by telling a story. In the late 1980s, I worked with (and occasionally against) Murray Dickman, an aide de camp for then-Attorney General Dick Thornburgh. 

In a notable conflict with President Ronald Reagan’s (and soon-to-be-President George H.W. Bush’s) conservative allies, myself included, Thornburgh wanted to make Robert Fiske a top aide (Associate Attorney General) in a position subject to Senate confirmation.  

Most conservatives engaged in judicial policy opposed Fiske, who had facilitated opposition to some of Reagan’s judicial nominees (including Judge Robert Bork in his 1987 Supreme Court confirmation) while on the American Bar Association’s Standing Committee on the Judiciary. 

I was no fan of Fiske’s, but thought Thornburgh should be given some benefit of the doubt to pick his own team. I was conflicted, but in the end opposed to Fiske along with my brethren. After long months of tension, Fiske’s name was pulled from Senate consideration.

In a post-mortem discussion, I sought to understand why Thornburgh was surprised over the controversy surrounding Fiske – and why conservatives were unwilling to let Fiske take the post while holding Thornburg and the president accountable. Dickman told me that, at least on this one, Thornburgh and most conservatives were speaking different languages, as different as English and French. But, he said with a laugh, “You and me are bilingual – we speak the languages of both.” 

Whether Dickman was right or not, I understand what Roberts did, and disagree with it as a matter of constitutional law. To be fair, you could say he was thinking in French, and something got lost in the English translation. 

In the end, Roberts’ controlling opinion is filled with reasoning honoring the cause of limited government, yet fashions an end result and precedent advancing federal government power in breath-taking ways.  

If CBS News is to be believed, Roberts originally agreed with the other conservative justices (Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Sam Alito) that the entire law was constitutionally infirm.

Indeed, in the category of reading tea leaves, there are hints in the structure of the contrasting opinions that the CBS report might be true. In a twist of historical fate, it was Judge Bork’s pinch hitter Anthony Kennedy – in recent years deemed the “moderate” swing vote on the bench – who apparently fought unsuccessfully to bring Roberts back to his constitutional moorings. 

The clarity of Roberts’ words on the commerce clause and the contrasting pivot away from their implication by seizing on the taxing power to uphold the Affordable Care Act are ultimately baffling. Hence the conclusion that Roberts was of two minds as the case neared its resolution in recent weeks. 

Deeming Roberts “the man with two brains” emerges in part from inspiration in a fine essay written immediately after the decision was issued. Syndicated columnist Charles Krauthammer commented about Roberts:

"Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the Court’s legitimacy, reputation, and stature."

Nothing wrong with either of those formulations, but in the conservative view (including Krauthammer’s) Roberts neglected one to achieve the other.

In the end, tension between the two parts of Roberts fertile mind rescued -- with America’s liberal journalists, legal analysts and law school deans -- “the Court’s legitimacy, reputation, and stature." 

Informed speculation about academic and/or political pressures on Roberts, the Chief’s concern for the Court’s reputation, perhaps even a personal desire to fit in the Beltway culture after years of calumny (including a direct rhetorical slap during one of President Obama’s State of the Union addresses) is probably, as Peter Roff put it on the U.S. News blog, “beside the point.”

Roff commented, “The decision has been reached and no amount of Monday morning quarterbacking will make a difference. It is important to know what the court said and how its ruling is to be applied going forward. It is important to understand, to the extent possible, the legal reasoning underpinning what Roberts wrote and what the other justices wrote. But the most important thing, the first thing really, is the need to press on in the political arena with the case for repeal.” 
 
George Will put it simply: “Elections matter most; only they can end Obamacare.” 

Students of the Court’s mysterious ways can be forgiven as they linger over this mystifying decision in which a penalty explicitly described in legislative history as “not a tax” was ruled a tax, and therefore the essential basis for upholding the law’s constitutionality. 

Roberts’ result might be viewed as “Rehnquist-ian” – evocative of an occasional pattern in the late William Rehnquist’s decision making. As an associate justice, Rehnquist was a normally consistent “strict constructionist” – albeit with a majoritarian bias. He felt the Court should leave legislative majorities free to do stupid or misguided or poorly conceived things. 

After 1986, when he became Chief Justice, Rehnquist often employed the chief’s right to assign opinion writing (so long as he was in the majority) or to write opinions himself. In a few cases, he seemed to join majorities with which he disagreed philosophically, in order to limit baneful effects in development of precedents.  

As a young lawyer, Roberts clerked for Rehnquist, and no doubt was influenced by his elder’s patterns. Still, it is difficult to recall any counter-conservative Rehnquist decision comparable to what Roberts wrought on the last Thursday of June 2012.

A champion of constitutional integrity fashioned a shocking result, upholding (as the dissenting opinion put it) “a statute Congress did not write,” while breaking ranks with kindred spirits in the most consequential Court decision of the new millennium. 

While doing so, Roberts made this much clear: “… The Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.” 

That is plain English, and requires no translation.

The justice with two brains has told Americans – "Don’t expect us to bail you out of any bad decisions. That’s your job."

Note: McGuigan is the author of “Ninth Justice: The Fight for Bork” (University Press of America).

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