Friday, June 29, 2012

RX: John Roberts

The headlines are fast and furious-making, the engine of government careening further right… HOLDER HELD IN CONTEMPT… CITIZENS UNITED TRUMPS STATE LAW… BOEHNER SAYS HEALTH CARE LAW HURTING ECONOMY… (a big Boehner for the GOP!) …and suddenly, an abrupt turn to the left… SUPREME COURT UPHOLDS HEALTH CARE LAW and THE MANDATE CAN STAY! and ROBERTS SAVES OBAMACARE and… Whoa!  Chief justice John Roberts, the prescription for the Affordable Health Care Act?… for the country’s toxic  political malaise?… for what ails the Democratic Party?  Capital!

This is the same man who made two trips to Tallahassee, Fla., in November 2000 during the hotly contested presidential election between George W. Bush and Al Gore to assist lawyers working on behalf of Bush, to be subsequently appointed by Bush to the Supreme Court as its chief justice.  The man who, as a lawyer for the Reagan administration, wrote legal memos defending administration policies on abortion, and as a lawyer in the George H. W. Bush administration, signed a legal brief urging the court to overturn Roe v. Wade.  And it is the Roberts’ court, very much the Roberts’ court at this point, that twice voted in favor of upholding the Citizens United case, effectively characterized by President Obama in his 2010 State of the Union Address, as having “reversed a century of law to open the floodgates for special interests… to spend without limit in our elections.”  This is a very conservative man.  What got into him today?

Many bewildered conservatives are saying the Democrats got to him.  Nonsense.  A few legal experts see his action as a reaction to the excessive perception of Justice Anthony Kennedy’s heralded power as the swing vote.  Unlikely.  Some pundits suggest that by swinging left on such a momentous decision, he is gathering the political capital to tack further right again during the court’s next term, when it predictably may face a host of contentious issues doubtfully limited to affirmative action, gay marriage and voting rights.  But what if Roberts, calculatedly clever, is seeking to keep all his options for the future open, or, abundantly adroit, is even edging to the left?  He might turn into one of jurisprudence’s most nimble broken field runners.  Far-fetched?  Not if you consider the unexpected changes of heart and politics of a number of his court predecessors,  justices David Souter and Harry Blackman, and chief justice Earl Warren,  nominated respectively by Republican presidents George H.W. Bush, Nixon and Eisenhower.  

During his Senate confirmation hearings, Roberts likened the role as a judge to one of a baseball umpire whose "job is to call balls and strikes and not to pitch or bat."  With seven years on the court and perhaps a quarter-century or more to go, he can’t help but have his legacy and place in history in mind.  A relatively young man with lifetime tenure on arguably the most esteemed body of jurists in the world, it’s his court to save or let sink, and I believe he was astute enough not to let it sink any lower than it has, not, at least, in the eyes of a mere 44% of Americans who still approve of it according to a New York Times-CBS News poll published three weeks ago.  He looked for a way to do what he did.  Constitutionally predisposed to finding acts of Congress constitutional—he is on record stating, “we have a duty to construe a statute to save it, if fairly possible”—he found a way.

On a personal note, since I became aware of Judge John Roberts, I have held he’s really Tom Hanks, and we all know Tom Hanks would go to the ends of the earth, and beyond, for the Affordable Care Act!  That consideration aired and dismissed, my guess is that the chief justice, a learned, contemplative man, is conceivably appalled by the nasty, loony, irrational behavior of the extremists in control of the Republican party, and fearful of the future that foretells for the country—just doesn’t want to see Mitt Romney as its president.