Call it Courage

by Ruth A. Sheets

On Thursday morning, June 28th just after 10:00 a.m., the Supreme Court came down with a decision that by some was eagerly awaited and by others, awaited with trepidation.  The case was the constitutionality of the Affordable Health Care Law (Obamacare). 

Two of the major news outlets, Fox and CNN got the decision wrong at first.  They were so sure that the Court’s conservative wing would knock down President Obama’s signature legislation on principle, not on its Constitutionality that they didn’t wait to hear what the justices actually had to say.

Many of the Court’s decisions lately have been 5-4 with Justice Kennedy going with whichever side he happened to favor that day, although, mostly on the conservative side.  That is exactly what was expected with this decision, but alas for the Obamacare haters, and amazingly for the proponents of the bill, Justice Kennedy was not the decider on this one.  It was Chief Justice John Roberts.

It is hard to underestimate the courage it took for the Chief Justice to take the position he did.  Until Thursday, Chief Justice Roberts was the darling of the Right, a certain vote for anything that would demolish programs of moderates and progressives.  He nearly always sided with whatever would benefit business, limit rights for ordinary citizens, and give more power to those who already have too much of it.

Justice Roberts must have known that he would be maligned by the Right in ways generally only reserved for the most hated progressives.  He must have known that “traitor” would be one of the kinder things he would be called. 

I admit that I am not a particular fan of Chief Justice Roberts.  I find him shallow and easily swayed to support the wealthy, conservative powerful while hiding behind what he thinks the Constitution says about the founders in conservative revisionist history. 

It doesn’t take courage to do what everyone expects you to do.  It doesn’t take courage to go along.  Courage is required of those who stand for what is right knowing it will lead to rejection, anger, and vilification on the part of the people who thought they had you under their thumb.  That is what John Roberts has been experiencing since Thursday, and it does not seem to be letting up.

Had Roberts simply gone with the other conservatives, he would barely have been mentioned and again, Justice Kennedy would have been the decider.  Justice Kennedy does not seem to be particularly courageous with his decisions.  He seems to go with whatever argument he likes at a given time.  Chief Justice Roberts clearly did some weighing of the issues and consequences because he came up with an explanation for his position that was different from that presented in argument.

It will be interesting to see if Chief Justice Roberts’ courage extends into the next season when some very difficult cases will be facing the Court.  Will his traditional base find him predictable and dependable or will they and we find a thoughtful justice who stands for the least among us, those who could benefit from a courageous voice on the bench of the highest court in the land?