Rumor has it that Chief Justice Roberts changed his vote in the Obamacare case. Even if he did, that leaves open the question of why. Most observers think he changed it for political reasons. For example Charles Lane compares Roberts’ decision to the Compromise of 1850 about which Roberts wrote as a student in an award winning history paper on Daniel Webster. But it is also possible that Roberts changed his mind because he came to believe the arguments set forth in his opinion which, though wrong in my view, are not far-fetched.
When it comes to Roberts’ motive, this is another case of “those who say don’t know and those who know don’t say.”
But if Roberts was attempting to craft a political compromise, then he engaged in an act of gross judicial immodesty that is improper and foolish.
First, Roberts is a judge, not a Senator like Webster, Henry Clay, and the others who worked out the Compromise of 1850. Roberts was not nominated and confirmed to craft political compromises. He was nominated and confirmed to decide cases based on the merits and, as Chief Justice, to engage in various ancillary and administrative chores.
Second, any analogy to 1850 is inapt. America isn’t headed toward civil war. The left would have howled if Obamacare had been struck down, but it wouldn’t have seceded. Health care is an important issue, of course, but it isn’t slavery. If Roberts had 1850 and Daniel Webster on his mind, he was suffering from delusions of grandeur.
Third, Charles Lane and others talk about the respect Roberts supposedly has won for the Supreme Court (a strange new respect?). But most observers see this decision as either dreadful or political (or both). Where is the respect in that? Most conservatives are disgusted. And, though most liberals are happy now, they will be back to attacking Roberts and the Court the next time he’s part of a majority in a big case that doesn’t go their way – assuming that this scenario is still part of our future.
Fourth, no one knows what the effect of the Roberts compromise (if that’s what it was) will be. As Lane points out, the Compromise of 1850 was undermined by the divisive Kansas-Nebraska Act and the Dred Scott decision.
Judges aren’t competent to predict the future, and that includes the political impact of their rulings. This is true even of Justices who consider themselves the smartest person in the room.
A judicially modest judge understands that his proper role is to decide the case before him on the merits; to be the umpire, as Roberts put it so well during his confirmation hearing. An umpire doesn’t worry about how his call affects the game, and neither should a judge.
Again, I don’t know whether Roberts violated this, his own teaching in the Obamacare case, and I don’t assume he did. But if Charles Lane, Charles Krauthammer, and others are correct, then Roberts deserves the strongest condemnation.