The Obamacare decision highlights an ironic consequence of lifetime Supreme Court tenure in an age of ideological polarization and routine filibusters.
Once upon a time, Presidents picked men (always men) in late middle age with long records of public pronouncements. Lately, the pattern has been to find the youngest possible candidate, male or female, with the skimpiest possible paper trail.
At fifty, John Roberts was the youngest person to be appointed Chief Justice since 1801, when President John Adams, who had just been defeated for reëlection by Thomas Jefferson, hustled the forty-five-year-old John Marshall into the job with the help of a lame-duck Federalist Senate. If Roberts hangs in there till he’s as old as his immediate predecessor, William Rehnquist, was when he was carried out feet first, he’ll still be Chief Justice in … 2036. Which is to say that young Roberts—unlike, say, the seventy-six-year-old Associate Justice slash right-wing blogger Antonin Scalia—has a concrete, personal interest in the long-term institutional health of the Court.
If the usual 5-4 “conservative” majority had thrown out the individual mandate, there would now be unsavory scenes of ecstatic delirium in the offices of Capitol Hill Republicans, at think tanks like the Heritage Foundation, on the right-wing radio dial, and throughout the winger blogosphere. A miasma of despair would be settling over the White House and seeping into Obama headquarters in Chicago. The odds against the President’s reëlection would skyrocket, as he could now be plausibly Swift-boated not just as an abject failure but also as a certified enemy of the Constitution itself. Come November, Romney would almost certainly win. A parade of little Alitos, tiny Thomases, and kiddie Kennedys would soon replace Ginsburg and the other Supreme Septuagenarians. Goodbye New Deal, hello back-street abortion.
That’s the outlook for the short term—i.e., the next eight or twelve years. But what about sixteen or twelve years of Roberts’s Chief Justiceship that would remain? Having murdered universal health care on top of installing Bush the younger as President and consolidating plutocratic domination of campaign finance, the Court would have definitively destroyed its reputation among Democrats, who would increasingly, and correctly, regard it as a branch of the Republican National Committee—or, worse, an all-powerful, unaccountable, unelected, essentially illegitimate second Senate that had arrogated to itself the power to rule by decree.
You may ask: So what? Who cares what a bunch of liberal weenies think? Well, even with a stacked Court automatically applauding every voter-suppression law as good and proper, there would someday be another Democratic President and another Democratic Congress—and both of them would likely have been elected on a promise to rein in the Men in Black. Scalia might be long gone, but Roberts would still be around to reap what he had sown. So he chooses not to sow it.
Of course, none of this would be relevant if Roberts did not have some semblance of a “judicial temperament”—if he were simply a younger version of Scalia, a radical reactionary bent on dictating immediate political and policy outcomes for narrow partisan purposes, regardless of the long-term consequences. On the other hand, I suppose, the Chief may simply be beating a devilishly clever, purely tactical retreat, devoid of principle. His gratuitous suggestion that the Constitution’s commerce clause doesn’t cover commerce in health care may be intended, as Justice Ginsberg seems to worry (and as Amy Davidson and William Yeomans suggest), as a poison pill calculated to make the regulatory state clutch its throat and keel over dead at some future date. It’s too early to say for sure. But today’s decision suggests that Roberts just might be that rarest of birds in the twenty-first century’s right-wing aviary: he might be an actual conservative, the genuine article. A Burke, not a burka—black robes notwithstanding.
Read The New Yorker’s full coverage of the health-care decision.
Photograph by Alex Wong/Getty Images.
