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The Real Reason John Roberts Upheld ObamaCare? – OpEd


t’s now well established that Chief Justice John Roberts had ulterior motives for upholding ObamaCare. The usual theories involve his being concerned about the Court’s, or maybe even his own, losing of respect by seeming to operate in a partisan manner. But, to ask what may appear a rhetorical question, why such concern about respect? Is it just vanity, the desire to be viewed as a font of temperance and intellectualism? Perhaps. But there actually could be a more tangible area of self-interest.

Before delving into that, however, I’ll address something related that also may help clarify Roberts’s personal self-interest motives. One factor perhaps underemphasized is the chief justice’s concern with his legacy. That is, our civilization has long been drifting left, and if you’re even mildly astute politically (this includes Roberts), you’ll perceive this and may consider that the future—and future history writers—will be defined by leftism. (If you’re unusually astute {this does not include Roberts}, you understand that civilizations move through phases, and our current leftist one won’t last forever.) Now, under this view, it’s a given that we would eventually have nationalized health care, just as Europe does; if not today, then in 5, 10, or 15 years. And, if this is your perspective and you’re concerned about your place in the history books, do you want to be known as the chief justice who struck down landmark legislation decades in coming? Do you want to be seen by tomorrow’s socialist utopian majority as a Justice Brown (of “separate but equal” infamy) standing against the “wave of the future”?

You see, Roberts strikes me as very career-driven. And, if he is, it’s entirely possible his attitude was, “Oh, no! I’m not going to be the heavy who does the dirty work and gets sullied in the process. You elected people who gave you this bill; now elect people who’ll repeal it—if you can. And, if you cannot, well, then don’t ask me to stand athwart history and yell ‘Stop!’ when it will only be a pit-stop.” I’m not condoning this thinking, mind you. In fact, my intellectual response here is that Roberts abdicated his responsibility; my visceral response is that he’s a bum. But now on to this piece’s main point.

There is another reason why the Court may be concerned about respect: Its greatest power, judicial review, is based on nothing but respect.

As you may know, judicial review is the phenomenon whereby actions by the legislative and executive branches of government are subject to review and possible invalidation by the judiciary. It’s a power that enables five Americans to strike down laws enacted by representatives elected by 100 million Americans.

What some don’t know, however, is that judicial review is not explicitly granted to the Court by the Constitution; rather, it was declared in Marbury v. Madison (1803) by the Court itself. That is to say, the U.S. Extreme Court decided it wanted extreme power, and “voila!” And the executive and legislative branches of government have respected it ever since.

But not everyone agrees that the rule of law should become the rule of lawyers. For instance, Thomas Jefferson warned of an imperial judiciary, saying that if judicial review ever became status quo, our Constitution will have become a “suicide pact.” In other words, to find precedent for denying judicial review, you need only look to early America and the Founding Fathers.

Now, being a mildly astute Extreme Court justice, John Roberts certainly knows this history. He knows that he and the other Black Robes enjoy their power at the pleasure of the executive branch. He knows that, conceivably, a president could get fed up with the Court, echo Andrew Jackson and say (I’m paraphrasing), “The justices have made their decision; now let them enforce it.”

Also note that there have already been murmurings in this regard. In April, a Texas federal judge found statements Barack Obama directed at the courts so unsettling that he asked the Department of Justice for a letter stating the administration’s position on judicial review. Explaining his demand to a DOJ lawyer appearing before him, he said that the president’s words had “troubled a number of people who have read it as somehow a challenge to the federal courts or their authority or the concept of judicial review, and that’s not a small matter.”

Now, in light of the above, imagine you’re a chief justice concerned about maintaining power. Imagine you believe tomorrow’s power brokers will be increasingly left-wing. Imagine you understand that leftists, being the situational-values set, change rules as they go based on their desires and power to fulfill them. Might you not be a little concerned about losing so much of their respect that they suddenly see the wisdom in the words of dead white males such as Jackson and Jefferson? I bet you might. And I wouldn’t be surprised if John Roberts was.

Of course, this is only a theory. It’s entirely possible, likely even probable, that such an extreme consequence never even occurred to Roberts the Rationalizer. And, even if it did, it probably was just one of a few craven motivations. But it’s certainly worth pondering. After all, if you had a great power—an undeserved one, I might add—enjoyed at the pleasure of those with an excess of guns, gall and guile, you just might figure that there isn’t much future in being dead right.

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Selywn Duke

Selywn Duke is a columnist and author.

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