Can We Take John Roberts's Word at Face Value?

For years, conservatives have articulated a clear legal philosophy to guide their beliefs about the proper role of the courts and the way judges should arrive at their decisions, much clearer than the philosophy liberals espouse. They said they supported "originalism," whereby judges would simply examine the Constitution as the Founders understood it to guide its interpretation today. They said they opposed "judicial activism," wanting judges to simply interpret the law instead of making their own laws. Liberals always replied that these ideas were a disingenuous cover for something much simpler: conservatives just want judicial decisions that support their policy preferences. They see whatever they want in the Constitution and define "judicial activism" as nothing more than decisions whose outcomes they don't like.

The reaction to Chief Justice John Roberts joining the Supreme Court's four liberals to uphold the Affordable Care Act shows something revealing about the conservative perspective on the Court and the law. Despite all the time they've spent asserting that the decisions they like are based only on principle, they seem incapable of even considering that a decision they didn't like could possibly be based in anything other than politics. Could John Roberts have sided with the liberals because in this case, he decided that they were right? Oh, come on, they reply, who are you kidding?

TPM did a roundup of some of the conservative reactions, and the closest thing to a substantive explanation is that Roberts, despite amassing a truly remarkable record of conservative activism up until now, may turn out to be some kind of O'Connor-esque squish. But this is a minority opinion; the prevailing belief seems to be that Roberts was trying to curry favor with The New York Times editorial page, insane as that sounds.

There may well have been some horse-trading, and maybe some politics at work, with Roberts potentially seeing a greater long-term victory for the conservative movement in which he has spent his career in undermining the federal government's spending power via the Medicaid decision than in striking down the law in its entirety. And perhaps he was concerned that the Court's legitimacy would be undermined by striking down the most significant piece of domestic legislation in generations, in a decision that would inevitably be seen as partisan. But it's also possible that when he wrote "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders," he actually believed it. It isn't such a crazy idea.

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