Our recent Supreme Court fight was just lovely, wouldn’t you agree? We really must do this again.
Unless Justices Ruth Bader Ginsburg (85) and Stephen Breyer (80) manage to outlast the 72-year-old Donald Trump, we will. The spectacle surrounding the Brett Kavanaugh confirmation, which replaced one conservative judge with another, will only get worse when it’s time to replace a liberal stalwart.
Perhaps Ginsburg and Breyer can beat the odds. No doubt they’ll try. Jurists don’t relish giving up their seats to their ideological opposites, and these two may have help coming from Robert Mueller’s Russia investigation or from the 2020 election. Yet if it comes down to a race against Father Time, the president has the edge.
Democrats are understandably distressed. But to some extent, they’re unnecessarily distressed. They’ve let their fear grow out of proportion to reality, given what we know about Chief Justice John Roberts.
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Their fear, of course, is that the Supreme Court will reverse Roe v. Wade and allow Bible Belt states to outlaw abortion. If not for this issue, Americans would never have heard the name Christine Blasey Ford. Her allegations against Kavanaugh would have been quietly investigated and, once no corroboration was found, tucked away in a file.
And what do we know about Roberts? With Anthony Kennedy gone, he’s the closest thing to a “swing” vote on the court. More important, he feels responsible for protecting the court as an institution and avoiding the perception that it functions as an unelected super-legislature.
Go back to June 2012, when Roberts cast the decisive vote to uphold the individual mandate of the Affordable Care Act. The mandate required citizens to buy health insurance and imposed a cash penalty if they didn’t. Roberts used verbal acrobatics to turn the penalty into a tax and found it constitutional, though the law as written didn’t call the penalty a tax and Obama had famously denied it was one during a 2009 interview.
The Supreme Court got another shot at the ACA in 2015, when plaintiffs backed by the Competitive Enterprise Institute challenged the legality of federal subsidies in states that hadn’t set up insurance exchanges. Though the law authorized subsidies for policies obtained through exchanges “established by the state,” the government was subsidizing millions of policies bought through the federal exchange.
Again, Roberts declined to interfere, joining Anthony Kennedy and the four liberal justices. His reluctance was not due to a misunderstanding of plain English. Nor should his reluctance in the earlier case be construed as missed irony: becoming the first government official to define the individual mandate as a tax and then declaring it constitutional on that basis clearly caused Roberts discomfort.
In both cases, the chief justice sacrificed intellectual precision and no small amount of conservative support for the reputation and standing of the court, which more and more Americans were seeing as politicized. He expressed his determination to stay out of the partisan fray when possible in his 2012 decision: “It is not our job to protect the people from the consequences of their political choices.”
That statement pertained to a new law that had never cracked 50 percent in public opinion polls. Now imagine how Roberts might approach a law that dates back to 1973 and has enjoyed majority support from the public ever since. Is he really hoping for a chance to wade into abortion, the most emotionally charged issue in U.S. politics since slavery?
Not likely. And here’s a bet he isn’t alone, even on the court’s right wing.
Reach Michael Smith, a Lexington office worker, at email@example.com.