Conservatives thought they had a chief justice who would refrain from legislating from the bench. They were wrong.
On Thursday, the Supreme Court delivered another major victory to ObamaCare, voting 6-3 in King v. Burwell to uphold the subsidies at the heart of the sweeping health care reform law. Supreme Court Chief Justice John Roberts — appointed by George W. Bush, and once a beloved figure on the right — wrote the majority opinion, joined by the court’s liberal wing and swing Justice Anthony Kennedy.
This isn’t the first time Roberts has sided with the left on ObamaCare. And as a result, my fellow conservatives are comparing Roberts quite ignominiously to David Souter.
Souter, of course, was appointed by Bush 41, and turned out to be a huge disappointment to conservatives who were already tired of being let down by Republican SCOTUS appointments. (Looking at you, Earl Warren.)
But here’s the thing: In the wake of Roe v. Wade, and after bitter fights over the Robert Bork and Clarence Thomas nominations, conservatives thought they had figured it out. The right created an impressive infrastructure and network to identify and promote conservative lawyers, clerks, and would-be judges. And along the way, conservatives settled on a judicial criteria that went something like this: Judges should interpret the law, not legislate from the bench. John Roberts was supposed to be the perfect example of someone who had come up through the ranks, and would render decisions accordingly.
The irony here isn’t that a Republican-appointed Supreme Court chief justice has twice preserved the landmark legislation of Barack Obama. The irony — and heartache, for conservatives — is that on both occasions, Roberts has had to employ judicial gymnastics to rationalize his decision. In the King v. Burwell decision, Roberts chose to ignore the letter of the law — no matter how specious or unintentional the letter may have been — and instead, divine the law’s intent.
More irony ahead. Keep reading…