How can a court that decides political questions be “above politics”? Is “surprise” the new criteria for national leadership? Is it Justice Roberts who surprised–or us who were surprised, a subtle distinction that turns his action around to view our reaction.
Justice Roberts’ decision was unexpected because a traditional test of the court, reviewing legal questions against all constitutional frames, was missed by those weighing politics rather than legal techniques. The Times’ Linda Greenhouse came closest to being the decision’s oracle when she reviewed Robert’s support of Arizona v. US.
The craft of the law has always been able to conceal its politics, whether decisions like Dred Scott or Citizens United. What is surprising is the recent willingness to put its politics on display, when once politics entered through the Court’s back door, in a labyrinth of arcane points that gave the illusion that law and politics were at arms length.
In our culture, that distance has shrunk. Roberts relied on the old arcanery, but politics amplified the stakes, changing our reaction. Would he be a hero on the Warren Court? On his mentor’s, Judge Rehnquist? More than a fair number view his opinion as that of a traitor/socialist enabler/constitution destroyer. Their surprise leads not to elevation but outrage.
The outrage is to marshall forces that blames the government and kills the ACA protections; its cherished pieces never measured up to its denigrated whole.
Justice Roberts went after its process, limiting claims and authority under commerce, releasing states from its medicaid option, opening a new controversy, the idea of a tax, while preserving its major Republican goal–a new market of 30 million consumers for coverage and care.
The national GOP had a full blown attack plan for the decision, complete with coordinated calls, press and a hashtag, #fullrepeal.That’s not answering a longing for leadership or answering millions of health care needs; it’s creating greater division while allowing companies to rake in the profits.