Originally published in The Daily Caller (here), July 11, 2012 –
In the two weeks since the Supreme Court upheld most of the Affordable Care and Patient Protection Act in National Federation of Independent Business v. Sebelius, there has been much praise from both left and right for Chief Justice John Roberts’ surprising opinion.
Writing in The Christian Science Monitor, Kurt Shillinger described Roberts’ “moderation” as “a measured rebuke to the law’s politicization.” David Brooks of The New York Times said Roberts’ decision represents “a moment of … Burkean minimalism and self-control.” The Atlantic’s Daniel Epps went so far as to suggest that the ruling “might actually turn out to be a brilliant strategic move” on the order of Chief Justice John Marshall’s seminal decision in Marbury v. Madison. USA Today praised the decision as rooted in conservative principles of judicial restraint, and argued that “[i]f politicians exercised similar thoughtfulness a lot of the nation’s problems might go away.” Writing in The Washington Post, Charles Krauthammer praised the decision as “pulling off one of the great constitutional finesses of all time.” Also writing in The Post, George Will described the ruling as “a substantial victory for conservatives” and praised Roberts’ focus on “constitutional language.”
Which brings us to Wonderland. In Lewis Carroll’s Alice in Wonderland, Humpty Dumpty explains to Alice that there are 364 days for un-birthday presents, leaving only one for birthday presents. “There’s glory for you!” says Humpty. The following exchange ensues:
“I don’t know what you mean by ‘glory,’” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument,’” Alice objected.
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
In joining the court’s four liberals to uphold the constitutionality of Obamacare’s individual mandate, Chief Justice Roberts is clearly the master. That’s all.
For purposes of the Anti-Injunction Act, says Roberts, what Obamacare’s supporters insisted is not a tax is, in fact, not a tax (and thus the lawsuit could go forward before anyone actually paid the penalty for failing to acquire health insurance). But for purposes of determining whether or not Congress has constitutional authority to enact the mandate, Roberts says the very same words enact a tax. Those are the meanings the chief justice has chosen. Yes, Alice, you can make words mean so many different things.
While Roberts’ opinion has been criticized by conservatives, notwithstanding the praise from Krauthammer, Will and other leading conservative voices, it is interesting and revealing that those in praise from both the left and right have had little to say about the chief’s legal arguments.
He is celebrated as a leader, a pragmatist, a statesman, a man concerned about the reputation of the institution he leads. But he is first and foremost a judge. As Roberts insisted during his confirmation hearings, the rule of law depends on judicial indifference to outcomes. The judge is like an umpire with no concern for who wins the game. The umpire cannot choose for a walk to mean five balls or a fly out to mean any ball caught on the first bounce. The rules, not the umpire, are master.
And so it should be with judges — particularly the chief justice of our nation’s highest court. Roberts’ opinion in NFIB v. Sebelius might have earned high marks in a course on politics, but in my constitutional law class it would warrant a gentleman’s C. And that would be a gift.