In the end, applesauce won over baseball. Fourteen years ago, during
Senate hearings regarding his nomination as chief justice of the United
States, John Roberts used a baseball metaphor to explain his view of
judges’ modest role:
Judges and justices are servants of the law, not the other
way around. Judges are like umpires. Umpires don’t make the
rules; they apply them. The role of an umpire and a judge is
critical. They make sure everybody plays by the rules. But
it is a limited role. Nobody ever went to a ball game to see
the umpire…I will remember that it’s my job to call balls
and strikes, and not to pitch or bat.
On two major cases related to President Obama’s signature health care
law, however, Roberts violated his 2005 pledge, wriggling himself into lexicographical contortions to uphold the measure passed by Congress.
As his then-colleague Justice Antonin Scalia noted in the second
ruling—which posited that the phrase “Exchange established by the
state” applied to exchanges not established by states—upholding
Obamacare caused Roberts to embrace “pure applesauce.”
A forthcoming book by reporter Joan Biskupic, who has covered the
Supreme Court for decades, goes into detail on Roberts’ first defense
of the health-care law—his ruling in the 2012 case of Nation Federation
of Independent Business v. Sebelius. In a book review for The Atlantic,
Michael O’Donnell includes the following precis of Biskupic’s
She writes that he initially voted with the four other
conservatives to strike down the ACA, on the grounds that
it went beyond Congress’s power to regulate interstate
commerce. Likewise, he initially voted to uphold the ACA’s
expansion of Medicaid. But Roberts, who kept the opinion
for himself to write, soon developed second thoughts.
Biskupic, who interviewed many of the justices for this book,
including her subject, writes that Roberts said he felt ‘torn
between his heart and his head.’ He harbored strong views on
the limitations of congressional power, but hesitated to
interject the Court into the ongoing health-insurance crisis.
After trying unsuccessfully to find a middle way with Kennedy,
who was ‘unusually firm’ and even ‘put off’ by the courtship,
Roberts turned to the Court’s two moderate liberals, Stephen
Breyer and Elena Kagan. The threesome negotiated a compromise
decision that upheld the ACA’s individual mandate under
Congress’s taxing power, while striking down the Medicaid
On the day of the ruling in June 2012, Chris Cillizza, then writing for
The Washington Post, claimed that Roberts’ opinion “made good on his
pledge to referee the game, not play it.” But the story Biskupic tells,
which confirms prior reporting by Jan Crawford published shortly after
the ruling, contradicts Cillizza’s view entirely. Roberts’ entire
approach to the case consisted of playing games—and highly political
ones at that.
The tenor of the passage reinforces how Roberts abandoned his stated
principles in NFIB. Over and above talk of “the ongoing health
insurance crisis” (perhaps a rhetorical flourish inserted by a liberal
Atlantic writer) Roberts had no business feeling “torn between his
heart and his head,” let alone stating as much to a reporter. Judges
can feel both empathy and sympathy for parties in the courtroom and at
the implications of their rulings. But facts remain facts, the law
remains the law. Lady Justice remains blind for a reason.
An umpire—or a good umpire, at least—should make calls without fear or
favor. If that means calling a third strike against the star slugger
for the last out of the World Series, so be it. By his own admission,
Roberts let factors outside the law determine his vote in the case. He abandoned his key test at a time when he should have followed it most
Roberts’ Judicial Arrogance
Last spring, when analyzing the most recent lawsuit seeking to strike
down all of Obamacare, I wrote that “in this case, striking down [all
of] the law through legal fiat would represent judicial activism at its worst—asking unelected judges to do what elected Members of Congress
took great pains to avoid.”
I took that position not because I agree with Obamacare, but because
Congress in 2017 decided to set the mandate penalty to zero while
maintaining the rest of the law. Of course, Congress had taken no such
action clarifying its intent on the law at the time of the ruling in
NFIB v. Sebelius.
If the current lawsuit represents judicial activism, asking judges to
take an action that Congress explicitly declined to embrace, then
Roberts’ 2012 decision to uphold the individual mandate represents an
act of judicial cowardice, running for cover and hiding rather than
taking the decision that the law requires. For that reason alone,
conservatives should refer to the law as “Robertscare”—for the justice
who went out of his way to save it—rather than Obamacare. It shall
stand as his epitaph.
Q: Why is ObamaCare like a turd?
A: You have to pass it to see what's in it.