Saving The Court?

The recent decision by the Supreme Court regarding “Obamacare” will be dissected and discussed ad nauseam so I hesitate to add fuel to the fire. However, there is an interesting aspect of the decision that was recently picked up in a Yahoo news story that suggests Chief Justice Roberts’ decision to side with the liberal members of the Court may have “saved” the Supreme Court. Quoting Terry Moran, the story begins

Chief Justice John “Roberts rode to the rescue of the Obama health care plan, and maybe rode to the rescue of the Supreme Court, as well,” says Moran, who has been covering the Supreme Court for many years.

Given the blatantly partisan nature of the Court in recent years — since at least Gore vs Bush, the Court was in danger of becoming not only predictable, but positively anti-constitutional. It is clear that the Founders, following Montesquieu and Locke, saw the Court as an essential element in the balance of power between the legislative and the executive branches of the government. Locke, of course, saw the judicial branch as a part of the legislative branch and thought the third branch should be the war-making arm of government, which is an interesting thought. But Jefferson and Madison followed Montesquieu’s revision of Locke’s view in regarding the judicial branch as separate and apart from the legislature. So it came to be.

But when the Court continues to side with the party that appointed the majority of its members, it ceases to fulfill its function. Speculation now suggests that this was the thinking behind Roberts’ decision: to restore the Court to its original purpose. Let us hope so. As a Bush appointee, it was a virtual certainty that he would side with his conservative fellow-members to overthrow “Obamacare.” This has been the pattern of late. But this did not happen and as a result the Court may have restored some of the confidence the citizens of this country need to have in it in order for it to have the effect it was designed to have at the outset. Polls recently suggested that people were losing confidence in the Court and that assuredly hampers its effectiveness — though one wonders if members of the Court pay any attention to polls.

Whether this is the case or not, it is refreshing to see the decision come “out of the blue” in this case — regardless of where one stands on Obamacare.  And if Roberts did in fact act to “save” the Court he is to be applauded. But if, as has been suggested, he let this decision slide so he could rule against abortion when it comes up, then it’s simply politics as usual: judicial activism, Certainly not what the Founders had in mind. It will be interesting to see how it all plays out. In the meantime, we can be pleased that the Court got it right this time.