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Keeping the Supreme Court Out of the Election

By David Glick

Throughout the fall, the Supreme Court was conspicuously absent from the campaign. It did not come up in the three presidential debates and was rarely mentioned in press coverage of the campaigns. On the one hand, the emphasis on taxes and jobs overshadowed other issues such as housing policy, gay marriage, and immigration along with the Supreme Court. On the other hand, abortion, contraception, and other social issues were very much a part of the campaign, which could have opened the door to talking about judicial appointments. While many factors likely contributed to the absence of Court politics on the campaign trail, I would like to focus on only one: Chief Justice Roberts’ strategic decision in the health care cases that helped prevent liberal backlash in the fall and helped keep the Court above politics in the long run.

Back in March, few would have predicted that Supreme Court appointments would be almost invisible during the campaign. After all, the news was filled with coverage of oral arguments in the health care cases. They dominated the news and divided the country. Analysts tried to divine what the Court would say. A majority of analysts predicted that the Court would strike down the health care law, and that this decision would spur outrage at the Court from a significant fraction of the country which, based on cases such as Citizens United, was already skeptical that it had become the judicial wing of the Republican Party.

Now, it is easy to forget how politically tense the Court’s decision was. Everyone knew it would come out in late June, and on every day the Court released opinions, the media outlets were ready with live coverage. Again, given this attention and anxiety in late June, the fact that the Court was not an issue in October is remarkable. Importantly, the Court’s campaign absence was no accident. It was not an important election issue because Chief Justice Roberts decided his first priority was to make sure it did not become one. It is almost easy to forget the health care cases now, but that is, of course, the point. Think about the counterfactual. Imagine if the five conservative justices had struck down health care.

When viewed simply as a legal matter, or even a “liberal vs. conservative” matter, the Chief’s vote and opinion seem odd. When viewed from the perspective that the Court is not just nine people but a political institution that relies on its reputation for its authority, it begins to make sense. It is probably safe to assume that Chief Justice Roberts was not thrilled with the individual mandate and that if he were writing an opinion in a hypothetical case as a student, he would have struck it down. However, Chief Justice Roberts, like many of his predecessors, is also concerned with the Court’s reputation and is not comfortable risking it on one case. The Court has a long history of occasionally making “strategic” decisions that incorporate political realities—such as public perceptions to avoid unwanted controversies—and maintain its legitimacy for being “above politics.”

“Ken Tremendous,” the pen name (from his sports media criticism site “firejoemorgan.com”) of TV comedy writer and producer Michael Schur (The Office, Parks & Recreation), tweeted shortly after the decision: “It would’ve been funny if Roberts’s majority decision had just said, “Here. Sorry about ‘Citizens United.’” I think he was pithy, funny, concise, and essentially right. A few days after the decision, CBS news essentially corroborated this take on the decision by reporting that the Chief switched his vote because he was concerned about the consequences for the Court’s reputation if it struck down the health care law. Perhaps most of all, Roberts was afraid of approximately half the country attacking the Court during the election while the other half defended it. He willingly took conservative criticism in the short run, and decided a close case against his sincere views, to protect the Court in the long run. While some would say that the Court considering anything other than “the law” is a travesty, the reality is that once we are talking about Supreme Court cases, “the law” is not so simple. Like his predecessors dating back to John Marshall, Roberts cleverly—and I would say, bravely—protected the Court as “different from politics” in the long run by playing a bit of politics in the short run. The fact that the Court was not an election issue likely makes him very happy and should make him proud.

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