John Roberts as Statesman

In The Ghost and John Roberts and The Roberts Trap is Sprung, Bill Dunne addresses the possibility that Chief Justice Roberts was influenced by high-level political considerations when he cast the deciding vote to uphold ObamaCare. As Dunne says, had the law been struck down:

Howls of outrage would have erupted from every Democrat/leftist stronghold . . .  The din would have been relentless. The smearing of small-government Republicans as selfish meanies would be easy as pie and more effective than ever.

The result might well have been a powerful Democratic tide. Instead:

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.

Dunne cites an article I wrote in The American that suggested that Roberts could well have had in mind the experience of the 1930s, when the Court's rejection of the execrable National Recovery Act and Agricultural Adjustment Act helped cement the New Deal revolution in government power.

Dunne notes that comment on his suggestion have not been favorable, running about 5-1 against him. Many of these comments are outraged at the thought that Roberts would consider such megapolitical issues or let them influence his judgment. So let me add a point to the discussion.

The Supreme Court, and the courts in general, should be political institutions, not in the narrow sense of partisan politics, but in the large sense of being pillars of the Republic. Over the past few decades, they have abdicated this duty, outside of the realm of civil rights, largely because they were traumatized by the 1930s. Government power was allowed to grow uncontrollably, and do not kid yourself that the Commerce Clause part of the ACA decision is a major retreat. At the same time, administrative law, the body of doctrine concerning the principled control of federal agencies, has atrophied.

Only occasionally do agencies receive any check, and a major reason is that the Supreme Court has treated such laws as the Endangered Species Act as technical legal exercises when they should have examined them in a larger context. When pure legal analysis leads to absurd results, as in California and the Delta Smelt, it is time to leaven legal formalism with common sense.

So suppose that Roberts, a very smart man, is aware that the accretion of legal doctrine since the 1930s has led us into a blind alley. Suppose he embraces the point made by economist Deirdre McCluskey:

...anyone who after the 20th century still thinks that thoroughgoing socialism, nationalism, imperialism, mobilization, central planning, regulation, zoning, price controls, tax policy, labor unions, business cartels, government spending, intrusive policing, adventurism in foreign policy, faith in entangling religion and politics, or most of the other thoroughgoing 19th-century proposals for governmental action are still neat, harmless ideas for improving our lives is not paying attention.

How would he push back? This is a partly a problem in crafting new legal doctrines, or dismantling old ones, to fit the knowledge we have gained since 1914, but it is, before that, a problem in megapolitics in the sense that the public and the times must be receptive to such legal innovation.

And one of the chief characteristics of all great megapoliticians (perhaps we can call them "statesmen") is a sense of ripeness.

Executives are paid to anticipate problems and forestall them with such effectiveness that no one knows there was a threat. Not so with great statesmen, who must have the abilities to: (1) Anticipate the trend of events; (2) Set forces in motion early that will become important down the road; (3) Wait for things to ripen to the point where a broad consensus exists that reform is needed. (And to do all this without sacrificing core values.)

Of these, the third is the hardest emotionally, especially for a far-sighted executive, because (s)he must watch good opportunities to prevent damage slip by. Nonetheless, ripeness is all, and such disasters as ObamaCare, the Delta Smelt, IRS overreach, and energy policy are making the failures of mindless progressivism increasingly obvious to the aware to a degree that was inconceivable a few years ago.

So cut the Chief Justice some slack. He has a hard task. He may believe that his role is not to prevent government folly -- he can't -- but to maintain the integrity of the political system so that, once the people understand the folly, they can repudiate it. Only then can the Court undertake the job of developing the legal doctrines needed in a reformed polity.

James V DeLong is the author of Ending 'Big SIS' (The Special Interest State) and Renewing the American Republic 

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