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John Roberts Was Made for Such a Time as This

I’d be lying if I didn’t admit that there have been a number of times that I’ve experienced frustration with the decisions and opinions of Supreme Court Chief Justice John Roberts. Sold to Americans by President George W. Bush as an originalist with a temperament of judicial restraint, Roberts committed one of the most egregious acts of activist legislating from the bench in the history of the Court.

You likely remember the scene well. The Obama administration had sold their Affordable Care Act to the American people on the premise that it was not a new tax on the American people. Roberts astutely observed during oral arguments over the Obamacare case that there was a severe problem with that – apart from their taxing powers, Congress had no constitutional authority to enact the law’s centerpiece, the individual mandate.

Rather than stay within its constitutional authority, striking down the law and sending it back to Congress to be rewritten, Roberts led the Court to rewrite it themselves, and then uphold a law that was in practice co-written by the Chief Justice. It was a galling betrayal of originalist jurisprudence committed because of Roberts’ apparent preoccupation with the legacy and public perception of his Court.

But despite those kids of frustrations, just like my adopted (and I believe healthy) approach to President Donald Trump, I think we should also be willing to compliment Chief Justice Roberts when he demonstrates his professionalism. And that’s exactly what happened in this uncomfortably and unnecessarily provocative moment from the impeachment trial last week:

To be sure, this was a pathetic attempt at grandstanding on the part of Senator Warren. Undoubtedly annoyed at having to leave the campaign trail in the run-up to the Iowa caucuses and New Hampshire primary, Warren was looking for a headline-inducing, news-cycle dominating signature moment. And what better way to do that than submit a petulant, cynical, and unprofessionally peevish “question” backhandedly attacking the dignity of the Chief Justice who would be forced to read it publicly.

But watch his reaction. Watch his unwavering consistency in tenor and tone. Watch his resolute steadiness as he executes his duty.

This is the John Roberts that was promised by then-president George W. Bush, and despite my irritation and even exasperation at his tendency to place “keeping the peace” ahead of making the right decision, I’ll happily acknowledge that his is the very type of temperament needed for these divisive and contentious times.

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