The Real Reason John Roberts Upheld ObamaCare?

By Selwyn Duke

It’s now well-established that Chief Justice John Roberts had ulterior motives for upholding ObamaCare. The usual theories involve his being concerned about the Court’s, or maybe even his own, losing respect by seeming to operate in a partisan manner. But, to ask what may appear a rhetorical question, why such concern about respect? Is it just vanity, the desire to be viewed as a font of temperance and intellectualism? Perhaps. But there actually could be a more tangible area of self-interest.

Before delving into that, however, I’ll address something related that also may help clarify Roberts’s personal self-interest motives. One factor perhaps underemphasized is the chief justice’s concern with his legacy. That is, our civilization has long been drifting left, and if you’re even mildly astute politically (this includes Roberts), you’ll perceive this and may consider that the future — and future history writers — will be defined by leftism. (If you’re unusually astute [this does not include Roberts], you understand that civilizations move through phases, and our current leftist one won’t last forever.) Now, under this view, it’s a given that we would eventually have nationalized health care, just as Europe does; if not today, then in five, ten, or fifteen years. And, if this is your perspective and you’re concerned about your place in the history books, do you want to be known as the chief justice who struck down landmark legislation decades in coming? Do you want to be seen by tomorrow’s socialist utopian majority as a Justice Brown (of “separate but equal” infamy) standing against the “wave of the future”?

Roberts strikes me as very career-driven. And if he is, it’s entirely possible that his attitude was, “Oh, no! I’m not going to be the heavy who does the dirty work and gets sullied in the process. You elected people who gave you this bill; now elect people who’ll repeal it — if you can. And, if you cannot, well, then don’t ask me to stand athwart history and yell ‘Stop!’ when it will only be a pit-stop.”

I’m not condoning this thinking, mind you. In fact, my intellectual response here is that Roberts abdicated his responsibility; my visceral response is that he’s a bum. But now on to this piece’s main point.

There is another reason why the Court may be concerned about respect: its greatest power, judicial review, is based on nothing but respect.

As you may know, judicial review is the phenomenon whereby actions by the legislative and executive branches of government are subject to review and possible invalidation by the judiciary. It’s a power that enables five Americans to strike down laws enacted by representatives elected by 100 million Americans.

What some don’t know, however, is that judicial review is not explicitly granted to the Court by the Constitution; rather, it was declared in Marbury v. Madison (1803) by the Court itself. That is to say, the U.S. Extreme Court decided it wanted extreme power, and “voilà!” And the executive and legislative branches of government have respected it ever since.

But not everyone agrees that the rule of law should become the rule of lawyers. For instance, Thomas Jefferson warned of an imperial judiciary, saying that if judicial review ever became status quo, our Constitution would become a “suicide pact.” In other words, to find precedent for denying judicial review, you need only look to early America and the Founding Fathers.

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