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.