With the apparent demise of the Confederate flag, the vindication of Obamacare and chronic poor diet, these really are the days that try the elasticity of the arteries of post-55 white male America. But amidst the gnashing of teeth, one thing should be apparent. John Roberts really is the best thing that ever happened to Republican jurisprudence and the conservative judicial movement.
During his tenure – now amazingly approaching the end of its first decade – Roberts has overseen a wide-ranging reorientation of American jurisprudence in a decisively conservative direction, often reaching well beyond what anyone would have thought possible, upending case law going back decades or even a century. Citizens United gets a lot of play. But the last decade has seen a multitude of little Citizens Uniteds quietly clawing back the permitted bounds of the regulatory state and government action.
And yet, he has also repeatedly saved them from themselves. Had the Supreme Court issued a ruling today that cut off Obamacare subsidies, it would have driven conservative talk radio to a level of thrill and joy that only depriving Americans of health care could possibly bring. But it would have broken zero new ground in terms of conservative jurisprudence. The whole case was based on a narrow, if fundamental, issue of statutory construction. And more than this, it would have further discredited what remains of the Court’s reputation, thus undermining the major gains Roberts has achieved.
The same applies to Obamacare’s first near-death experience before the Court. The case was more plausible than the ridiculous argument behind King v Burwell. But it was not strong. And Roberts managed to make new law (ready to be built open in the future) even as he found a creative way to permit the government mandate.
He has saved them from their own worst instincts and tendency toward overreach – overreachs the three amigos of wingnuttia seem repeatedly rollickingly eager to make. To paraphrase the Rolling Stones, Roberts has done a marvelous job of getting judicial conservatives what they need, just not always what they want. And indeed, he often saves them from things that are really the last thing they should want.
