Opinion | Restraint must continue to guide Roberts court
Published: Tuesday, October 16, 2012
Updated: Tuesday, October 16, 2012 02:10
This June, United States Supreme Court Chief Justice John Roberts shocked the country when he provided the fifth vote to uphold the heart of President Obama’s controversial and polarizing health care law then penned the majority opinion.
Apoplectic Republicans were quick to scream “RINO” (Republican in name only) at the Chief Justice, while liberals rejoiced — though their party was dampened rather quickly once they realized Roberts had greatly hamstrung their ability to ram through any more sweeping expansions of the welfare state because of his rejection of the administration’s commerce clause argument for the mandate.
And though modern day Republicans may never square with this fact — it was a great triumph of conservatism that Roberts acted as he did.
This assertion requires an explanation as to what the word conservative truly means.
Conservatism is often miscast these days as heartless, and equally as often, as blindly aggressive as its great ideological foe—the excessive in its nature liberalism. But conservatism is and should always be about liberty paired with a virtuous brand of humility and restraint.
The great Irish political philosopher and member of the House of Commons, Edmund Burke, commonly known as the intellectual forefather of conservatism, explained the essence of conservative thought the best when he wrote, “But what is liberty without wisdom, and without virtue? It is the greatest of all possible evils; for it is folly, vice, and madness, without tuition or restraint.”
Humility and restraint, these two great virtues teach us to respect the wisdom of our forefathers, and to fight to maintain the institutions they so effectively designed which have endured over time.
These institutions have endured for a reason, and we don’t have all the answers, so let’s show a healthy amount of respect and deference to the construct of society.
While liberalism is quick to change, and is blindly ambitious, it often to leads to great mistakes; conservatism, on the other hand, understands the necessity of some change, but knows that reform should come slow. Conservatives must be the ultimate skeptics.
This leads us back to Chief Justice Roberts. His decision was a clear attempt protect the institution of the Supreme Court at a time when institutions in our country have taken a huge hit. Public confidence in the Supreme Court sits at 24 percent, according to the Harris poll.
This is a travesty, and Roberts recognizes this. He also recognized that a full strike down with dubious legal reasoning, and clear political motivations, would have caused a country-wide crisis of confidence in the Court, and our institutions cannot afford to continue to take such great hits.
The majority opinion Roberts penned certainly involved some legal jiu-jitsu, but at its core, it recognizes the limited reach the judiciary should have in changing statutes.
Roberts, in essence, told the people and the Congress to do their job, and not expect him to do it for them with fell swoop of the pen when he wrote of the Court, “It is not our job to protect the people from the consequences of their political choices.”
Chief Justice Roberts, as a life-long conservative Republican, would likely never vote for the Affordable Care Act as a legislator, but as an avowed judicial minimalist, interested in the institutional strength of the Supreme Court, knew he had no real grounds to strike down the law based on legal precedent.
Bad public policy is not always unconstitutional. Chief Justice Roberts deferred to his better judgment when he accepted this line of reasoning.
Now, the Roberts court has not always led in the tradition of judicial minimalism Roberts displayed last June. Though Roberts told Jeffrey Rosen in an interview before he took the bench that he was interested in getting to a unanimous decision as often as possible, this has rarely been the case since 2005.
This isn’t all Roberts fault; his four friends to his right and left are all pretty well dug in ideologically, and, all too often, so is he. But Roberts took an important step last June by bucking the ideological tides, and instead deferring to his minimalist instincts.
A Chief Justice can easily make a court in their image—Earl Warren and William Rehnquist were often examples of this—the position can pack a serious punch if used effectively.
So as the Roberts Court takes on some contentious issues once again this term, lets hope the Chief Justice imposes his minimalist and humble style on the court. Refusing to give into the fast runners on his left, or, unfortunately, his right, instead, leading in a virtuously restrained direction.