The Ghost and John Roberts

The chief justice must have "gone off his meds." No, it was blackmail. No, it was cowardice. He caved. It was a perverse abdication of his fundamental responsibility. Those are some of the many disputations that came in to American Thinker regarding my exploration of another possible explanation for why Chief Justice John Roberts chose, astonishingly, to keep the "Affordable Care Act" alive and kicking.("The Roberts Trap Is Sprung", American Thinker, Jan. 2)

Of the nearly 680 comments, roughly four out of five were against the thesis I advanced, which is that Roberts ruled as he did because he foresaw that if the Supreme Court were to kill the "Affordable Care Act" in its infancy, the ruling would ultimately backfire on the cause of constitutional governance. Further review, however, has led me to look upon that thesis as even more plausible, not less. Here's why.

Let's look first at the most popular counter-theory among the commenters, because it seems the simplest to dispense with, albeit the most sensational. Here's the gist of it:

The Scullduggery

John and Jane (nee Sullivan) Roberts were married in 1996 and about four years later they adopted their two children, both infants at the time, a boy and a girl, about four months apart in age. The adoptions were "private," meaning they were arranged through private parties without the involvement of any agencies. The notion of the Obama White House blackmailing Roberts arose with rumors that the adoptions may have been illegal under the laws of Ireland.

Ireland? Yes. It seems the children were said (by whom is unclear) to be of Latin American origin. Their fair complexions and blonde hair, however, suggested to some that a northern European origin was more likely. Two sets of circumstances to keep in mind: One is that during Roberts's confirmation battle almost nine years ago (he was nominated by George W. Bush), the New York Times was hot on the trail of anything untoward in the nominee's past. Seven years later, in the weeks immediately preceding the ObamaCare ruling, the Obama White House was doing its own digging, and the president himself was out in public decrying a possible ruling against his signature accomplishment.

Now, a question: Which European country makes both private adoptions and out-of-country adoptions illegal? Yep. Ireland. Therefore, as the rumor has it, the Roberts children must have been born in the Emerald Isle and therefore their adoptions in America must have been illegal. Clearly the chief justice was ripe for blackmail if there were facts to back it up. Be a shame to see your family broken up over ObamaCare, wouldn't it, Chief? Then there's that impeachment thing.

Sensational, sure, but rumor and speculation can't be relied upon if that's all there is, and as far as I know, that is all there is. So we'll leave it at that.

The first suggestion that there might be a genuine silver lining to the judiciary's rescue of ObamaCare was issued by George Will mere hours after the decision. Will began his column with this head-spinner: "Conservatives won a substantial victory Thursday." He continued: "The physics of American politics -- actions provoking reactions -- continued to move the crucial debate, about the nature of the American regime, toward conservatism." The rest of the column didn't provide much in the way of elaboration, but as far as consolation went, anything would do for a start.

JohnYoo, however, was inconsolable. A law professor at the University of California at Berkeley and a former attorney in the G.W. Bush Justice Department, Yoo filed his commentary in the Wall Street Journal the day after Will opined. He complained that "Justice Roberts's opinion provides a constitutional road map for architects of the next great expansion of the welfare state."

As to the mystery of what really motivated Roberts (because virtually no one -- certainly no one on the conservative side -- could believe that Roberts had arrived at his opinion through a straight-up reading of the law and the Constitution),Yoo made an interesting reference. He harkened back seven decades to the Supreme Court under Chief Justice Charles Evans Hughes. The Hughes court in 1935 infuriated President Franklin D. Roosevelt by demolishing several pillars of the New Deal edifice then a building. Some of those laws, like the National Industrial Recovery Act, were so awful -- at least as bad as ObamaCare -- that they lost 9-0.

Enter the Ghost

A few days after Yoo recalled the Charles Evans Hughes era, another observer did that and more. He conjured up the ghost of Charles Evans Hughes. Author and Harvard-trained lawyer James V. DeLong, writing in the online magazine of the American Enterprise Institute, noted that FDR's first response to his defeats in the Hughes Court was his notorious court-packing scheme. While that particular maneuver down in flames, the fury of FDR's reaction nonetheless succeeded in cowing the Court. The justices changed their positions on subsequent building blocks of the New Deal and waved them through.

Hughes, therefore, had "probable cause to regret" his Court's torpedoing of the earlier New Deal laws, bad as they were. Why? Because, as DeLong put it, "the long-term cause of constitutional government might well have been better served if the administration had been forced to keep eating its own dog food."

Is that it? The key to the mystery? Was Roberts channeling Hughes when he decided to flip?

No telling, unless Roberts himself lets us in on his thinking. But DeLong fantasized the ghost of Justice Hughes whispering the following advice in Roberts's ear as he pondered ObamaCare: "So give a ringing endorsement to the principle that Commerce Clause power is limited, and then use the taxing power to give the people what they voted for, good and hard." (A nice reference to H.L. Mencken's definition of democracy: "the theory that the common people know what they want, and deserve to get it good and hard.") "Don't," added the ghost, "give the administration a martyr."

It would appear that Roberts heeded the spirit's advice to the letter. And he added, as if to sharpen the point, "It is not our job to protect the people from the consequences of their political choices."

So what's been the result so far? The Democrats have been forced to keep eating their own dog food. They're having a terrible time getting it down. And are apt to reap a terrible whirlwind. What's more, "the long-term cause of constitutional government" may be brighter if, as looks more likely now, the GOP wins the Senate this November and the White House in 2016. The fact that many millions of us are being harmed in the meantime is unfortunate, but we're also getting what could be an education of immense importance regarding the dangers of a democratic republic unmoored from its foundations.

Sometimes, in other words, we just have to learn things the hard way. We can only hope that the learning is not coming too late.

Bill Dunne runs an executive-communications consultancy in Norwalk, Connecticut