A Save This Time Takes Six of Nine

The non-radical John Roberts

Chief Justice Roberts is my friend. It's not just because he doesn't creep me out nearly as much as Scalia, Thomas, and Alito do. It's probably because he is a more traditional, solid conservative in the institutional and political sense, not just judicial, and will likely not overturn the ACA (AKA - "Obamacare") in any radical way.

I still wonder if the Chief Justice might have had a little talk with Justice Alito about his injudicious jumping at the President's bait on Citizens United in the 2010 State of the Union Address. True Conservatives preserve the status quo and try to avoid causing scenes. Right now, the status quo is President Obama and the American People with health care in their pocket.

Of course the eventual decision will be very well crafted on complex legal analysis and there will be a well-written dissent as well. But the last thing Roberts wants is to make the Supreme Court the issue in the presidential election. That can't be avoided to some extent. I just think overturning health care reform causes more constitutional and political turmoil at this point in time than upholding it does now that the tea party has already let off steam. Sure, we still have the dregs from 2010 and our presidential election will continue to be brutal, but the People of our Constitutional Union are exhausted. And Roberts is no Taney.

My position in support of the President and his signature legislation, in spite of extreme political opposition, is established. I have also provided a bit of boring legal analysis as to why I think the President's position on behalf of the People of the United States is likely to prevail. And better brains than mine have given it some rational chance of success like this from my moderate Republican friend at Utah Political Summary.

Justice Owen J. Roberts

Now history gets weirdly coincidental. The Supreme Court was a significant issue in the presidential election year of 1936.  It was another Justice Roberts who was the "Switch in time that saved nine" in his swing to support FDR's New Deal legislation. Of course it ended up as well to save FDR from one of his worst ideas -- packing the Supreme Court with extra judges who would go his way in upholding New Deal legislation. It is also how historical development has probably frozen forever the number 9 as some sacred numerology for the Court (the Constitution is silent as to how many, and it took a while to get up to nine - but no more seats are ever likely now!)

And this little nugget summary about the previous Justice Roberts from Wikipedia (sorry):

Conventional history has characterized his vote in West Coast Hotel Co. v. Parrish as a strategic measure to save the judicial integrity and independence of the U.S. Supreme Court.

Note that it says "conventional history" as this is subject to interpretation and there are certainly many Beckian-Skousenites as well as more main-stream Conservatives and Libertarians (if Libertarians can be main-stream) who take philosophical issue with this. But the arc of history still, well, arcs.

My prediction of 6-3 on ACA is now out there. As unpredictable as the Court can be, I am more than prepared to "unpack" it when the decision is announced likely around the end of June.

 (Hey, Chief Justice Roberts! My birthday is June 28!)


ADDENDUM
July 11, 2012
Well, I nailed my birthday, nailed the Chief Justice and much of the rest of my predictions. I missed Justice Kennedy. And, the whole thing was much weirder than I ever could have predicted!  (see here).