By now, you’ve heard the Supreme Court voted 6-3 in King v. Burwell to uphold the subsidies at the heart of ObamaCare. And you probably know that Chief Justice John Roberts is being compared to David Souter — who was nominated by the first President Bush. (This really doesn’t help Jeb, does it?)
The irony here isn’t that a Republican-appointed Supreme Court chief justice has twice preserved the landmark legislation of Barack Obama. The irony — and heartache, for conservatives — is that on both occasions, Roberts has had to employ judicial gymnastics to rationalize his decision. In the King v. Burwell decision, Roberts chose to ignore the letter of the law — no matter how specious or unintentional the letter may have been — and instead, divine the law’s intent.
The upsetting thing is that Roberts was essentially the poster child for what a conservative nominee was supposed to be — that is, if we were to avoid another stealth nominee (like Souter) or a failed one (like Robert Bork). Conservatives invested a lot of effort into creating the infrastructure that would incubate a young John Roberts — and then actually get him confirmed. His end of the bargain? Simply being the kind of justice who honors the rule of law and doesn’t legislate from the bench… And now this happens.
Advocates of a conservative judicial philosophy, who have invested so much in this great and long effort, must feel incredibly frustrated today. Roberts checked off all the boxes as someone who ought to rule as an originalist (remember his “umpire” analogy?). And yet, conservatives who believe the role of judges is simply to interpret the law (not re-write it) have been dealt another blow. (One can certainly applaud Roberts for wanting to exercise “judicial restraint,” yet in doing so, he was clearly guilty of “legislating from the bench.”) It’s sad, really.
Not much has changed since 2012.