"Is John Roberts the most intellectually honest person in the country, or is he a huge [explicative [sic] deleted]?"1
So asked an email that popped into my inbox on Thursday night, approximately eight hours after the Supreme Court's announcement that the Affordable Care Act was constitutional under the Taxing Clause.
A lot more emails like it followed.
Let me back up and explain. These emails weren't spam. They weren't political lobbying. They were addressed to me because I am 1) a Supreme Court scholar and 2) the author of a children's biography about the Chief Justice. On Thursday, no doubt, summer interns across the country were googling, "John Roberts biography" and happening across, well, me.
At first, I was taken aback by the emails. I was perplexed -- why would educated viewers, listeners, and readers care about whether John Roberts was a good guy or a bad guy?
And then I thought about it some more. And when I did, I concluded this: I think that the Supreme Court, in insisting on remaining cloaked behind its literal velvet curtains, has failed to educate the public about what it does, why it does it, and why the personalities of its players are irrelevant to the job at hand: deciding the great questions of our day.
And so, in giving interviews this week about the Supreme Court and the health care decision and, yes, the Chief, here's what I've had to say.
First off, in my personal experience, the Chief is a truly great guy. He is kind, and respectful, and caring, and as far from a diva (divo?) as one of the leaders of the free world can get. Here's an example: When I interviewed him for my book, I had the kind of nightmare-come-true that terrifies every writer -- my computer froze on me, and only the photo of my children that then served as my screensaver would come up. Instead of sighing and looking at his watch because -- true story -- his next meeting was with Chief Justices from around the world who had come to Washington to welcome him to their cohort, he smiled and said, "Oh, are those your kids? Mine are about the same age!" (Thankfully, after I smiled back and acknowledged that yes, we were both in the throes of parenting preschoolers, my word processing program graciously agreed to join our little coffee klatch, and the interview continued).
And I'm far from the only human being on the planet who thinks the Chief is super. His staff reveres him. The people around the Court building respect him. And his sisters? Don't even get me started on his sisters -- to hear them tell it, the man invented sliced bread (but would not force anyone to buy or eat it).
And I say all of this even though John G. Roberts, Jr., and I are about as far down at the opposite ends of the ideological spectrum as two people can be. Yes, I take lots of ribbing from my liberal friends about the fact that I am secretary of the should-exist-but-doesn't Chief Justice of the United States Fan Club. But I stick to my guns. The Chief? He's a honey.
But now let me tell you that all of what I've just written DOES. NOT. MATTER. Because Chief Justice John G. Roberts, Jr., is a totally different animal from Brother John. Chief Justice Roberts runs the third branch of the federal government, and he -- as First Among Equals -- decides issues of national import. As far as his lawmaking goes, his personality doesn't matter a whit.
What does matter is his judicial temperament.
Now, if you are reading this article, you have no doubt read approximately 900,232 other articles over the past five days about why the Chief joined the so-called liberal Justices in upholding the ACA. You have read tons of speculation (and, perhaps, even one confirmed story) that he changed his vote somewhere along the way. You have heard that he did it in the name of institutional legitimacy, or in the name of judicial ethics, or in the name of constitutional integrity. You have heard that he was bullied into doing it by the left. Or that he was bullied into doing it by the right. Or that his seizure disorder made him do it and he'll be printing a retraction as soon as he's back to his unmedicated senses.
But here's the thing: "Leaks" or no "leaks," we'll never really know why he did it. That's because the why doesn't matter. It's the opinion that matters. It's the rule of law that the decision establishes that matters. The opinion is the force that allows over 30 million uninsured Americans to access health care. And, in my opinion (see, I have opinions, too), the Chief's majority opinion tells us plain and simply why he decided what he did.
Here's what the Chief said: "[I]f the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress's constitutional power to tax. The question is not whether that is the most natural interpretation of the mandate, but only whether it is a "fairly possible" one. As we have explained, 'every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.' The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read... " In simpler terms, as he described it a page or so back, "[I]t is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so."
And so here's what I think happened. I think the Chief is an ideological animal. I think we all are. Indeed, Supreme Court scholars have recognized for decades that the Court is a political institution, that Justices do make decisions based in part on ideology, and that only mythical -- not living, breathing -- Justices interpret and apply the law without emotion or bias.
But I think that the Chief realized that his judicial ethics overrode his ideology here. Deeper than his ideological streak, I think, is the Chief's decent streak, his "do the right thing as I see it" streak. And I think he thought the right thing was to give the statute a Constitutional reading if there was one to give. What's more, I think he recognized that doing so would protect the Court's legitimacy, at least in the public's perception. But beyond that, I think, he realized this: had he stuck with the four Justices who ended up in dissent, he would have betrayed not only the Constitution, not only the Court as a legitimate institution, but himself.
In that same 2005 interview where my computer screen froze, I asked the newly-minted Chief Justice of the United States what he liked best about his job, now that he was a whole six weeks in. His answer (paraphrased)? "I love the rule of law. I think it's miraculous. I look forward to going forward and leading this institution in preserving it."
And that, my friends, is what will make Chief Justice Roberts go down in history as a great guy.
Team Chief all the way!
1 - Email reproduced as in the original, except for my addition of [sic].