Milbank: Justice Roberts upholds Supreme Court's integrity

By Dana Milbank, Columbian Syndicated Columnist

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John Roberts was the first justice to appear from behind the curtains when the buzzer sounded in the Supreme Court chamber at 10 a.m. sharp. He forced a tight grin and scanned the audience, which, on this historic day, included several members of Congress and retired Justice John Paul Stevens. The only hint of what was afoot came from Antonin Scalia, who, taking his place at the chief justice's right, bowed his head, as if in mourning.

"I have the opinion in NFIB v. Sebelius," Roberts announced matter-of-factly, as if stating that he was about to admit a new crop of lawyers to the Supreme Court bar. His words were so measured and his delivery so calm, that 14 minutes elapsed before he signaled which way the decision had gone -- by answering those who wanted to declare the health care law unconstitutional with those two dreaded words: "We disagree."

In the audience, Sen. Orrin Hatch, R-Utah, a foe of the law, folded his arms across his chest, his mouth slightly agape. Sen. John Barrasso, R-Wyo., put his chin in his hand. Rep. Tom Price, R-Ga., a leader of House conservatives, shook his head. Scalia was reclining in his chair, staring blankly. Clarence Thomas was practically horizontal.

Roberts explained why he had sided with the four liberal justices: not because he thought the health care law was "good policy" but because there wasn't a constitutional reason to invalidate the individual mandate at the core of the law.

"We possess neither the expertise nor the prerogative to make policy judgments," he wrote in his majority opinion, which he read in part from the bench. "Those decisions are entrusted to our nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

Roberts' opinion was extraordinarily brave. It was the biggest case yet for the Roberts-led court, and expectations on both sides were that the chief justice and the four other conservatives would deliver a majority opinion consistent with their political preferences much as the Rehnquist-led court did in Bush v. Gore. But Roberts chose a different path. He forged a middle ground that spared the nation the political crisis that would have come from striking down the president's signature legislative achievement. In the process, Roberts went a long way toward re-establishing the legitimacy of the court, which has an importance far beyond health care.

Decision still divides

Because the individual mandate in the health care law qualifies as a tax, Roberts concluded, and "the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness." This stunned liberals. Rep. Laura Richardson, D-Calif., spoke on the steps of the court, thanking "Chief Justice Roberts for showing, for the first time in a long time, that government can work if we focus on the facts." And it enraged the conservatives who once adored Roberts. Rep. Michele Bachmann, R-Minn., who had been in the court, railed: "Clearly, this is an activist court. … America will never be the same."

On the sidewalk, the fury and insanity of American politics were on display: Tea Party activists waving flags and ungrammatical protest banners, evangelicals prostrating themselves on the pavement to pray, proponents of government-run health care dressed as belly dancers, and the two sides shouting taunts.

Roberts got a taste of that inside the chamber. As Justice Anthony Kennedy, in dissent, accused the majority of "judicial legislation," of "vast judicial overreaching," and of trying to "force on the nation a new act," Roberts pursed his lips and stared at the desk in front of him. And as Justice Ruth Bader Ginsburg, in her partial dissent, objected to parts of Roberts' reasoning but embraced the conclusion because the law "survives largely unscathed," Roberts turned a pained gaze toward the ceiling.

Surely, the chief justice did not want to uphold the law. But in doing so, he upheld his integrity, and that of the Roberts-led court.