New York Daily News

Why chief justice sided with Obama

- BY JAMAL GREENE Greene is a professor at Columbia Law School.

Chief Justice John Roberts is not very popular among law professors. That’s partly because most of us are liberal and simply disagree with him ideologica­lly. But it goes deeper than that. The bigger knock on Roberts has been that he’s a hypocrite.

At his confirmati­on hearing back in 2005, he emphasized judicial modesty — but as a justice, he has voted to invalidate school desegregat­ion plans and local gun laws and has prevented Congress from regulating corporate campaign spending in the divisive Citizens United ruling. For many, Roberts is the Manchurian Chief Justice, smiling for the cameras as he secretly prepares to overturn decades of progressiv­e law.

And yet yesterday, to the dismay of the entire Republican political establishm­ent, in the most closely watched Supreme Court case since 2000’s Bush v. Gore, four months before a close presidenti­al election, Roberts provided the decisive vote to uphold President Obama’s signature legislativ­e achievemen­t, the Affordable Care Act. The critics owe Roberts a beer.

It is not just that his detractors may have been wrong about Roberts personally. It is also that, in so strongly suggesting that there really is a difference between law and politics, Roberts has lent credibilit­y to the very study of constituti­onal law. Just before this case was decided, Yale Law School Professor Akhil Reed Amar told Ezra Klein that if the court strikes down the mandate 5-4, “my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party and party loyalty.” Amar can sleep better tonight.

Probably. In the coming days and weeks, you are likely to see arguments claiming that Roberts is just playing 11-dimensiona­l chess. They will suggest that he merely handed Democrats and progressiv­es a Pyrrhic victory, part of a grand Machiavell­ian scheme to achieve long-term conservati­ve goals.

Some may argue, for example, that by labeling the individual mandate as a tax, he allows Republican­s to score points against Obama, who promised not to raise taxes on the middle class.

Or they may argue that upholding Obamacare gives Roberts political cover for striking down campaign finance laws in the Citizens United decision, or for forthcomin­g decisions that may invalidate affirmativ­e action policies or key provisions of the Voting Rights Act.

Others may suspect that in declaring the individual mandate to be beyond Congress’ power under the Commerce Clause, Roberts imposed significan­t restrictio­ns on federal power in the guise of giving a win to the President. I have little doubt that Roberts has an eye on his legacy. The last time the Supreme Court struck down as politicall­y significan­t a federal law as Obamacare was in 1857, when Chief Justice Roger Taney invalidate­d the Missouri Compromise in the Dred Scott decision. That decision, which may have led to the Civil War, is justly criticized as one of the court’s lowest moments. Taney’s is not company Roberts wanted to keep.

That said, I don’t buy the more cynical argument that Roberts was patting progressiv­es on the back with one hand and holding a dagger in the other. Roberts has said more than once that the court should strongly presume that federal laws are constituti­onal. He has said that the job of the judge is like that of an umpire, not to choose sides in a political controvers­y but simply to call balls and strikes.

He has taken some lumps, but the umpire finally struck back. Today, at least, he is entitled to being taken at his word.

Newspapers in English

Newspapers from United States