How Much Have We Lost?

Thursday, June 28, 2012

The Chief Justice Threads the Needle

This morning, I fully expected the Supreme Court to throw out the individual mandate and uphold the remainder of the Federal health insurance reform act. Turned out I was totally wrong and I also have a whole new level of respect for Chief Justice John Roberts.
The introduction to the 193-page opinion in NFIB v. Sebelius is an interesting mix of constitutional and political theory. I cannot remember the last time I remember an opinion that leads off with six pages of discussions about Alexander Hamilton, The Federalist Papers, Chief Justice John Marshall, and early Supreme Court cases such as McCullough v. Maryland.

What is clear to me is that Chief Justice John Roberts took this moment to write this opinion not only due to the policy implications of healthcare reform, but (1) because of his concern that this case had the potential to dangerously blur the lines between the political and judicial branches of our government (like Bush v. Gore) (2) this case presented questions that go to some very fundamental powers of the federal government, and (3) this case also presented fundamental questions about the interplay between federal and state government.  It was a once-in-a-lifetime opportunity make a mark as a jurist in an historical way.


When I was in law school, I took several classes by Professor Michael Klarman (who should never have left UVA Law for Harvard!).  His research, writing, and classes were focused on the history of the Supreme Court and trying to find common threads to explain why the Court would rule the way it did.  Most people assume that the Court follow the Constitution all the time or at least "the Court's" view of what it means tends to change through history. 

The Court tends be somewhat responsive to public opinion.  Brown v. Board of Education overrulled Plessy v. Ferguson.  A whole series of cases between 1950 and 1970 pushed the recalictrant south into ending racial segregation - Loving v. Virginia, Heart of Atlanta Motel v. United States, Sullivan v. Little Hunting Park - in part by embracing a broad view of the Federal Government's power under the Commerce Clause.  Some scholars theorize that the Court sometimes steps in and changes its mind about what the Constitutional commands due to political failures to act - e.g. Baker v. Carr.   Others theorize that the Court sometimes acts to protect disenfranchised minority populations underserved by the political system - e.g. Gideon v. Wainwright.  

This opinion and Justice Robert's being the one to author the opinion is a classic example of the Court struggling with a whole plethora of issues and reaching a pragmatic result.  It is fascinating on a whole number of levels - constitutional, political, legal, historical, philosophical, and even psychological. I haven't read all 193 pages, but it is clear to me that this opinion is going to be heavily studied for a long time to come and my opinion of Justice Roberts as a jurist just went way up. 

The Chief Justice earns my respect here for not getting bogged down in the politics of the issue, but staying focused on the broader historical implications of the Court wading into this fight.  By doing so, he has helped to preserve the fundamental bones that support our American democratic experiment that has survived 225 years and counting.

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