Karl Rove must be turning over in his grave now that the Supreme Court has given a thumbs up to Obama’s Affordable Care Act. Oh, Rove isn’t dead? I thought sure he’d had a heart attack the moment the ruling was issued.
Rove and George W. were totally enamored of Chief Justice John Roberts when he was initially nominated to the Court. In part, this was because Roberts told them that his own favorite justice was Robert Jackson. Jackson, though named to the Court by Franklin D. Roosevelt, turned out to be a remarkably independent jurist and “demonstrated a fidelity to the Constitution that Roberts admired,” in the words of Karl Rove. Apparently, Rove and George W. thought this meant fidelity to the conservative cause. Roberts just defined independence in his own terms.
Maybe the Republican duo that formerly ran the White House should have paid more attention to Robert’s opening statement at his confirmation hearing in 2005. He said, “Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.”
The nation’s mood has been moving steadily in the direction of mistrust of the Supreme Court. In 1994, the Court had an 80% favorability rating, while now it is a bare 51%. Roberts is keenly aware of the slide in the public’s trust as well as their view that the Court has become an increasingly political institution. He is no doubt concerned about his own legacy, in addition to wanting to overcome the impression of partisanship.
There are those who never thought Roberts was the ideologue that conservatives hoped for. “From the moment he took his seat, Roberts has said he hoped the Supreme Court would do a better job of reaching consensus,” says law professor Steve Wermiel, of American University. “He’s sincerely wanted to do that, but it hasn’t always been possible.” In the view of Cornell professor Michael Dorf, Roberts “is a skilled lawyer. Yes, he’s got ideological leanings, but he also listens carefully to all the arguments.”
Rove and George W. wouldn’t be the first to experience disappointment in how their Supreme Court nominee turned out. Harry Truman said that one of his nominees, Tom Clark, was a “damn fool from Texas.” Dwight Eisenhower had similar feelings about Chief Justice Earl Warren, saying his nomination “was the biggest damn fool thing I ever did.”
Roberts has aligned most often with the radical troika on the right—Scalia, Thomas, and Alito—and will no doubt continue to do so. After all, even in this case he agreed with them that the healthcare act’s individual mandate was unconstitutional under the Commerce Clause. (It’s constitutionality lies within the government’s right to levy taxes). But while conservatives lick their wounds, foam at the mouth, or have heart palpitations over the just-released ruling, the rest of us should savor the moment.
And, oh, what a moment it is!