To Chief Justice John Roberts, integrity and legitimacy now means pleasing the Left, i.e., upholding any law that expands the power and scope of government.
From William McGurn:
Not once in the 59 pages that constitute Supreme Court Chief Justice John Roberts’s lead opinion in National Federation of Independent Business v. Sebelius does he use the word “integrity.” Even so, in the days since the individual mandate was upheld as a tax, concern for the “integrity” or “legitimacy” or “reputation” of the Roberts Court has become the most accepted explanation for why the chief justice ruled as he did.
Thus Reuters, which tells us that Justice Roberts was “trying to preserve the integrity of the judiciary in polarized Washington.” Or the New York Times, where Tom Friedman lauds the chief justice for “a simple noble leadership impulse at a critical juncture in our history—to preserve the legitimacy of the Supreme Court.” The Washington Post’s Charles Krauthammer agrees with this motivation, speculating that had Justice Roberts “been just an associate justice, and not the chief” he might well have voted otherwise.
If Mr. Krauthammer is correct, it raises a disquieting question. During Justice Roberts’s confirmation hearings back in 2005, he described judges as umpires whose job it is to call balls and strikes as he sees them. The idea that he might have voted otherwise if he were not chief justice suggests that a “strike” was changed to a “ball” because of concerns for how the straight call would be perceived.
Let us stipulate that there’s nothing wrong with a justice who starts out with one opinion but changes his mind as he reviews the facts and arguments. Let us agree too that the reputation of the court is a legitimate concern of any justice. The fundamental difficulty remains: a labored lead opinion that looks like a conclusion struggling for a rationale.
It’s also hard not to notice that people now extolling Justice Roberts for rescuing the court’s integrity are largely the same ones who have been impugning it. That’s especially true of the White House, which had made plain that if the Supreme Court had gone the other way on health care, the Roberts Court would become a major target of Obama’s re-election campaign. The chief justice knows how ugly that might be, having sat through the president’s crass political attack on his court during the 2010 State of the Union address.
As more than one conservative has pointed out, the integrity of liberal justices who reliably line up for whatever outcome is desired by the Democratic Party goes unquestioned. Indeed, the definition of integrity assumes one direction. For example, the one notable occasion when the Supreme Court specifically invoked integrity was back in 1992 (Planned Parenthood v. Casey), when the court used it to justify reaffirming Roe v. Wade’s conclusion—a constitutional right to abortion—while rejecting the reasoning that led to it.
Granted, in that case the court was deferring to a previous judicial power grab and not to the people acting through their elected representatives. Still, Associate Justice Antonin Scalia’s clarifying rebuke is well worth reprising here: “Instead of engaging in the hopeless task of predicting public perception—a job not for lawyers but for political campaign managers—the Justices should do what is legally right.”
Justice Scalia’s dissent in Casey illuminates a political handicap imposed on conservatives by their own principles. Whereas the liberal belief in a living Constitution allows them to stretch its limits to justify almost any desired outcome, conservatives believe the Constitution imposes real limits. The chief justice’s tax argument rankles because no one else in America is buying it: certainly not the conservative dissenters, who firmly reject it, nor the court liberals, who appear to have winked because it gave them the outcome they wanted.
The day after the ruling came down, this newspaper carried an article that explained Justice Roberts’s decision this way: “By confounding charges that the court is too partisan, the chief justice might have earned sufficient political capital to move to the right during the next term, when the court will likely confront a host of hot-button issues, including affirmative action, gay marriage and the continued vitality of the Voting Rights Act.”
If earning “sufficient political capital” is simply a consequence of his ruling, Justice Roberts cannot be blamed. If it was the aim, however, and it led to his voting as chief justice in a way he would not have voted as an associate justice, he has raised rather than resolved questions about the integrity of the Roberts court.