US Supreme Court Blinks — An Additional Thought

A number of early commentators, some of whom have read the Supreme Court health care decision carefully, are focusing on the Chief Justice, both as the key vote and the author of the majority opinion.

And there seems to be growing respect for his decision (although I remain unconvinced that it was the right decision).

On CNN, Toomer observed that Roberts announced the court's opinion through red eyes, as though in anguish.

Over at our FB site, I have linked an article from a professor at HLS (my law school and the President's) who generally seems to come down on the side of Roberts as a fine example of a jurist on the highest court.

It is the most thoughtful and well-reasoned brief article I have yet seen (four hours into the post-Obamacare world), although his praise seems a little more loose than solid, and frankly I don't think it holds up too well on repeated reading.

To suggest that striking down a law passed by Congress would be "activist" echoes the fallacy of the President's public argument: it is EXACTLY the job of the Supreme Court to say "what the law is," and to solemnly intone otherwise is to reject the court's history, the concept of judicial review, and the seminal decisions of early American history (see Justice Marshall, whose precedential decisions used to be highly respected by law scholars and students).

And to explain the Chief Justice's decision as a sign of his sage consideration of his own legacy is, it seems to me, to belittle the man himself and imply that he reached his decision in part based on perceptions of public reaction instead of judicial integrity. Isn't that more acceptable at the legislative and even executive branches, which should be more responsive to the stimulus of the moment, while the judicial branch — with life-tenured, unelected officials — is supposed to be above that concern, and deliberately so (that is, the founding fathers intended to construct the Constitution in this manner)?

Nevertheless, this HLS professor makes as good an argument as I have seen on behalf of Roberts and I recommend that you visit our FB site for the article link.

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