The latest TIME features short essays from four former U.S. solicitors general about the U.S. Supreme Court’s federal health care ruling. You might be shocked — shocked! — to learn that none of those essays labeled Chief Justice John Roberts a clever wimp.
George W. Bush’s first solicitor general, Theodore B. Olson, notes the Roberts’ decision’s “legal and political ironies.”
Foremost, and central to the result, is the majority’s conclusion that the individual mandate is a legitimate exercise of Congress’s power to tax. During the legislative debate, the President and his allies were adamant that the mandate was absolutely not a tax. Had they marketed this provision as a tax, the bill would surely not have passed. So the Supreme Court saved the signature legislative achievement of the Obama Administration precisely because it was not what the Administration said it was.
Ken Starr served as solicitor general under the older George Bush before antagonizing that president’s successor as a special prosecutor. Starr suggests Roberts’ decision might be linked to his admiration for an earlier chief justice.
What saved the mandate was the Chief Justice’s commitment to the court as an institution that should exercise restraint in the course of reviewing Congressional assertions of power. This is part of the high court’s canon. That is the enduring legacy of John Marshall, who the incumbent chief has openly praised in lavish fashion.
The Chief Justice’s usual comrades were vigorously in dissent and must have found their leader’s theoretical approach baffling, even mystifying. But that is inside baseball and ultimately doesn’t count. What matters, now that the dust has settled, is that John Glover Roberts Jr. is in command and that the debate over the wisdom of President Obama’s legislative centerpiece returns to the legislative arena. That will be satisfying indeed to the Hoosier who sits in the center seat once occupied by his judicial hero, John Marshall.
