Justice Roberts Saved the Supreme Court — Here’s What He Needs to Do Next

Chief Justice John Roberts  in 2007, Photograph by Steve PykeBY PETER SCHEER —Chief Justice John Roberts orchestrated the upholding of President Obama’s health reform plan not because he believed that that was the legally correct outcome, and not because he wanted to spare Obama the loss of his singular legislative achievement. No, Roberts’ deft decision, substantially upholding the health law — while simultaneously accepting, and constitutionalizing, all the main legal arguments against it — was intended to save the Court.

Politicians worry about tomorrow’s headlines; a Supreme Court chief justice, taking a longer view, worries about the legitimacy of the institution over which he presides. Had the high court ruled against Obamacare, the decision would have been seen as a quintessentially political act, substituting the Court’s judgment for the policy choices of Congress, and preempting a legislative process that, following months of maneuvering, arm-twisting and deal-making, had yielded the “Patient Protection and Affordable Care Act” of 2010.

Justice Roberts is to be applauded, regardless of one’s party affiliation or view of the legal and policy merits of Obamacare. At a time when Congress is paralyzed by partisan schisms, and the President is unable to lead even his own party, much less command bipartisan support for essential programs, it is imperative that at least one of the “separated powers,” the Judiciary, retain its independence and capacity to influence events.

It remains to be seen whether Roberts will succeed. I, for one, applaud his handling of the health care case. But his legal legerdemain, and the ensuing flood of leaks from clerks and fellow justices unhappy about his supposed eleventh-hour conversion to the administration’s side, underscore the Court’s vulnerability to the same polarization that has neutered the rest of the federal government.

What can the Court do to shore up its legitimacy in a world in which the Glenn Becks and Keith Olbermanns are in ascendancy? Answer: It can, finally, open its doors to the public, permitting real-time video transmission, via TV and the internet, of the Court’s proceedings.

Although some of the Justices apparently fear that cameras will sensationalize and trivialize the Court’s work, in truth they will have just the opposite effect. Broadcast of the Court’s hearings (called “oral arguments”) would reveal to a skeptical public the spectacle of serious and thoughtful judges struggling with hard issues.

It is a spectacle that would shock (in the good sense of the word). Most Americans, when they think of public or elected officials, have in mind a legislative whorehouse in which special interest agendas and political expediency always prevail. Principles are irrelevant. Policies are irrelevant. And the public interest, particularly at the state level, is an alien concept.

Cameras in the Supreme Court, by contrast, would show a competition of neutral principles, with judges searching for a high ground that reconciles their favored outcomes with prior precedents. Although politics, at least in the more contentious cases, is never far from the surface, the vocabulary of Supreme Court decision-making is all about rules of general applicability, which are inherently restraining.

Once citizens in large numbers have a chance to view this process, they will disagree with this or that Supreme Court decision, but they are unlikely to view the outcomes as illegitimate. The more of the Supreme Court’s deliberations that the public is allowed to see, the more confidence the public will have in the Court’s legitimacy.

Transparency in this context strengthens a crucial political institution. Roberts would do a favor to the Court (as well as the public) by making video and TV access to Supreme Court hearings another part of his legacy.
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition (FAC). The opinions expressed here do not necessarily reflect the views of FAC’s Board of Directors.


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