Justice Roberts Explains Justice Roberts: Politics, the Supreme Court, and Constitutional Change

For students of constitutional history, one of the eerie aspects of Chief Justice John Roberts' vote to uphold the ObamaCare individual mandate was its resonance with the vote of an earlier Justice Roberts.  Chief Justice Roberts has not explained, and may never explain, his vote, but comments by that earlier Justice, Owen Roberts, may give some insight into the Chief Justice's thinking, as well as serve as a powerful warning about the relation between political considerations and the proper role of the Supreme Court.

In 1936, Justice Owen Roberts, a generally conservative justice appointed by Herbert Hoover, voted to uphold a state minimum wage law, reversing a decision of the previous year, where he had voted to overturn such laws.  He then went on to support many other 5-to-4 decisions upholding various New Deal laws.  Coming as it did on the heels of Franklin Roosevelt's "court-packing" scheme, Owen Roberts' initial vote has ever since been known as the "switch in time that saved nine" because it, along with other pro-New Deal votes by Roberts, took the wind out of Roosevelt's scheme and contributed to its defeat.  (Actually, Roberts voted in chambers before the "court-packing" scheme was announced, but there was still huge political controversy over the Court's earlier decisions striking various New Deal laws.)

There are many parallels with Chief Justice Roberts' ObamaCare decision.  Not only did both Justices Roberts' votes sustain vast expansions of federal power on constitutionally dubious grounds, but there were and are claims that both votes were motivated by political rather than legal considerations.  Just as Justice Owen Roberts' switch was attributed to the political storm of Democrat opposition to the Court's reversal of New Deal legislation, there is a widely cited report (see here, here, and here for just three examples) from CBS that Chief Justice John Roberts had originally sided with the conservative dissenters in the ObamaCare decision, but changed his vote because of concerns about the political prestige of the Court in the eyes of the media and Washington elites. 

Owen Roberts destroyed his judicial papers.  However, a few years before his death in 1955, then-former Justice Roberts gave a series of lectures at Harvard Law School, where he spoke publicly for the only time about his controversial switch to pro-New Deal votes in the late 1930s.  He acknowledged that the Supreme Court's pro-New Deal decisions "reduce the states to administrative districts rather than coordinate sovereigns" and that his switch reached "a result never contemplated when the Constitution was adopted, was a subterfuge."  However, he justified the switch as necessary to avoid "even more radical changes" in the constitutional structure.  He did not specify what "radical changes" he feared, but in the aftermath of FDR's landslide re-election in 1936, many might have seemed possible.

Again, we do not know now if John Roberts changed his vote, and why he did if he did.  However, there was clearly a storm of Democrat vituperation brewing and set to break loose in the event that the Court overturned ObamaCare.  Just as Owen Roberts started voting pro-New Deal in order to preserve the Court from FDR's machinations, so John Roberts may have voted to save the Court from the fury of a left and leftist president who would have forever after invoked an anti-ObamaCare decision in rejecting the legitimacy of every other Supreme Court decision they did not like.  And, just as Owen Roberts' switch to preserve the Court unleashed our modern massive and pervasive federal regulatory state, so John Roberts' effort to save the Court's prestige will allow that regulatory state to grow ever more massive and pervasive.

The natural reaction to the idea that the Supreme Court may have let loose the leftist federal police state simply in order to preserve its own standing should be outrage.  However, the tale of the two Justices Roberts offers a path to a solution.  What is the role of politics in the Supreme Court?  Most would say none, and they would be right.  Yet the Constitution itself is a profoundly political document.  How can we say that the Supreme Court should ignore political considerations in interpreting it?  Indeed, this is the crux of the argument of the "living Constitution" school of judicial interpretation, which calls on the judiciary to update the Constitution for changing times.

The answer to this is that the Constitution is political, but the Supreme Court should not be.  So how do we carry out "useful alterations" (Madison's phrase) that may be needed in this very political document?  The Framers' answer was not to delegate that power to the judicial branch.  Instead, political change in our political Constitution was to be accomplished by the very political process of amendment.  Unfortunately, our constitutional amendment process is the most difficult in the world, and effectively moribund.  The Framers showed great genius in providing for constitutional change by a deliberative and democratic process, and cannot be blamed that they made it too difficult for a nation as large and diverse as the United States has become -- far beyond their wildest imaginings, in fact. 

We can honor the Framers' vision by reviving the amendment process with a few conservative reforms.  The principal of these would be allowing a small group of states to initiate an amendment proposal without having to go through either Congress or the unused and unworkable mechanism of a convention.  Then the courts could go back to judging according to the original meaning of the laws and Constitution.  Instead, the People acting in their proper political capacity would be the final arbiters and defenders of the Constitution's meaning.  The Justices Roberts have shown that we certainly cannot rely on the Supreme Court to do so.

James W. Lucas is an attorney, entrepreneur and the author of the newly released Are We The People? Using Amendment to Take Back Our Constitution from Big Government, Big Business and the Supreme Court.  He blogs at www.timelyrenewed.com.

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