Until last week, Chief Justice John Roberts was vilified as the leader of a conservative judicial cabal poised to destroy the Obama presidency by overturning the federal takeover of health care. But with his unexpected affirmation, Roberts suddenly was lauded as the new Earl Warren — an “evolving” conservative who at last saw the logic of liberal big government.
Among our elites — journalists, pundits, and academics — liberal Supreme Court justices are always deemed “open-minded,” even as they are expected to vote in absolute lockstep liberal fashion. In contrast, a conservative justice is written off as reactionary or blatantly partisan when he likewise predictably follows his own orthodoxy — pressures that may well have affected Roberts if reports of an eleventh-hour switch in his vote are true.
No surprise, then, that a surreal discussion followed the recent ruling of the high court. Our legal establishment expected that the four liberal judges would not deviate one iota in their affirmation of the health-care law, even as it hoped that a conservative or two would show judicial character by joining the liberals.
Democrats like activist federal courts to overturn — in matters of gay marriage, abortion, affirmative action, and illegal immigration — ballot propositions and majority votes of legislatures fostered by supposedly illiberal and unsophisticated voters. But on health care, liberals — led by the president — made the argument that a wrongly activist Supreme Court should not dare to tamper with what an elected Congress had wrought.
President Obama was incoherent in his commentary on the Supreme Court. Before the Roberts ruling, when most were betting that the president’s health-care plan would be overturned — especially given the poor performance of Solicitor General Donald Verrilli in arguing the government’s case before the Court — Obama was angry at the thought of such judicial activism. In a manner that did not reflect much knowledge of either the Constitution or the history of the republic, he thundered, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”