The Decision, and the Fallout

Carol Platt Liebau

7/1/2012 7:53:03 PM - Carol Platt Liebau
CBS News reports that Chief Justice John Roberts changed his vote on the ObamaTax case.  

People whose intellects I respect seem to differ on the impact.  John Yoo is staunch in his insistence that there is no silver lining for conservatives, while Randy Barnett insists that while disappointing, the Chief Justice's decision to define the law's individual mandate provisions as taxes at least safeguards limited government compared to locating it within the Commerce Clause.

What is perhaps most interesting about the CBS story is the hints that the four more conservative justices were so disgusted with the Chief Justice's opinions that they signaled an unwillingness even to engage in debate with it (and by extension) him.

There's an impact there that's difficult to quantify.  I don't think Chief Justice Roberts cravenly feared the opprobrium of the left wing elite establishment.  I think he feared for the popular reputation of the Court, aware that too often the left wing elite establishment is the one that sets the terms of debate both now and in discussing history (here is a prime example).  And he feared that the legitimacy of the Supreme Court would be forever tarnished.

We could endlessly debate whether he was right, or whether he did the right thing (I'm a doubter on that one).  Only time will tell.  But one does have to wonder what the fallout will be on the Court; if true about the conservatives actually refusing to debate the Chief Justice through their opinion, that's pretty remarkable.

It will be interesting to see how Chief Justice Roberts fares in this era of polarized politics.  Liberals may tip their hats to him now, but that won't last long.  Conservatives will long remember the sting of his health care opinion.  Will he be able to wield the kind of influence he's hoping to achieve as Chief, after apparently alienating his conservative colleagues (even as he refused to give his liberal ones what they wanted)?  

Obviously, Chief Justice Roberts didn't do what he did in order to win friends.  And that's lucky for him, because it's done just the opposite.  I suspect he was trying to uphold a larger principle -- however much I disagree with it -- and perhaps the comfort of having done what he genuinely thought was right will sustain him in the days to come.  It will need to.