During his confirmation hearing in 2005 for Justice of the U.S. Supreme Court, John Roberts averred that his job on the Court would be “to call balls and strikes and not to pitch or bat.” Continuing with the baseball analogy, he explained that “judges are like umpires. Umpires don’t make the rules; they apply them.” His statement calmed the fears of many senators who were afraid that Supreme Court Justices were behaving more and more like activist judges, legislating from the bench, rather than serving as neutral arbiters of the law.
At the time, there was no reason to doubt Mr. Roberts because he was appointed by a Republican president and was considered a safe conservative choice to adhere to the letter of the law by applying a straightforward interpretation of the Constitution and the laws already on the books. Satisfied that Roberts meant what he said, the senate duly confirmed him to sit on the highest court in the land. In fact, they approved him to sit there in the big chair, as its Chief Justice.
To many observers, that was light years ago based on the remarkable transformation that has overcome Mr. Roberts. On issues pertaining to the Affordable Care Act, he has strayed from judicial orthodoxy not once, but twice. An individual “mandate” morphed into an individual “tax” in the first case. Insurance health “exchanges established by the state” expanded into “exchanges established by the state or the federal government” in the second case. Justice Roberts delivered the majority opinion in both cases. The rulings saved the Affordable Care Act from the dustbin of history. In both cases, Roberts sought to divine the intent of the law’s language rather than take words written in plain English at face value. In essence, he made things up to justify the preordained outcome he had in mind. The Affordable Care Act would live to see another day no matter what. Somehow, with preternatural insight, he brilliantly deciphered the collective intention of congress regarding certain details that were drafted into the law. Obviously, they intended what Roberts said they intended. Just ask him.
Instead of calling balls and strikes, as he promised to do under oath a decade ago, Chief Justice Roberts is throwing curve balls from the pitcher’s mound much to the chagrin and anger of those who approved his appointment. The sense of betrayal is palpable. Long story short, they believe Roberts punked the president who appointed him and the senate that confirmed him.
Roberts turned rogue and seems to be enjoying the attention. He has an aura about of him of someone who fooled everybody and got away with it. He not only got over on everyone who believed what he said during his confirmation, but he is thumbing his nose at them because he knows there is very little they can do about it. The last time a Supreme Court Justice was impeached for an opinion he rendered was way back in 1804 and that attempt failed miserably. It was never tried again. As a practical matter, the only way to eliminate a Supreme Court Justice who turns rogue is for him or her to die or resign, whichever comes first. So, it looks like Chief Justice Roberts is home free.
Even if the rulings in the two Affordable Care Act cases delighted you, there should be no joy in Mudville. Justice struck out. The way a decision is reached matters as much as the merits of a case. The next verdict handed down by the Supreme Court could turn against you and offend your sensibilities because some activist judges decided to play politics instead of doing their job. When Justices act more like politicians than impartial interpreters of the law, our liberties are imperiled. The last thing we need is a group of unelected half-baked politicians with lifetime tenures legislating from the bench while pretending that they are meting out justice. If Supreme Court Justices take to the playing field, who’s behind the plate calling balls and strikes?
With due deference to the framers of our Constitution, a lifetime gig for unaccountable activists on the Supreme Court doesn’t seem to be compatible with a democratic form of government. If our founding fathers were here today, they would probably agree that this isn’t exactly what they had in mind and would probably ask for a mulligan.
In the meantime, Chief Justice Roberts is on the mound throwing fast balls, high and tight. Between Roberts and the other activists on the Court, there aren’t enough umpires to cover all the bases.