Chief Justice Roberts May Have Played an Ironic Role in the Election of Donald Trump

Would Trump be President without the Judicial Deference of John Roberts on the Affordable Care Act?

By John Murdock Published on January 18, 2017

Assuming that he does not flub the oath as he did in 2009, the presence of Chief Justice John Roberts at the inauguration will largely go unnoticed. But President Trump should thank Roberts for more than just his ceremonial duties. By refusing to invalidate what is officially, if ironically, known as the Affordable Care Act, the Chief may have actually paved the way for Trump to enter the White House.

They say victory has a thousand fathers, and that is especially true here where Trump’s upset resulted from just some 80,000 crucial votes in Pennsylvania, Wisconsin and Michigan. Lots of factors, from a marginal increase in the African American vote for Trump to the revived FBI email investigation of Clinton, could be held up as key. The shock of double digit health insurance premium increases coming just days before the election can make a strong case for paternity as well. Even if it was not the issue, but it most certainly was an issue.

By refusing to invalidate what is officially, if ironically, known as the Affordable Care Act, the Chief may have actually paved the way for Trump to enter the White House.

Further, had the Chief not served as the unlikely swing vote and instead joined the late Justice Scalia and other conservatives who wanted to strike Obamacare down, would working class voters who subsequently lost their health insurance have been as likely to vote for Trump? At a minimum, the Democrats would have made the decision a get-out-the-vote rallying point for their base. Instead, the fate of the Supreme Court, though important to both sides, ultimately became a net plus for the GOP nominee and often provided the main motivation for many Trump-wary social conservatives.

When challenges to the Affordable Care Act came before the Court, many conservatives wanted to see their favorite justices set a firm limit on just what Congress could and could not do under the Constitution’s enumerated powers. They argued, not without reason, that taking words and the ratifiers’ intent seriously should lead to the law being struck down. By joining with the liberals and drafting an opinion that let the statute stand, however, the Chief still held true to another valid conservative principle, namely that of judicial deference to the actions of elected bodies. Now, instead of being killed by the judiciary, Obamacare is set to be repealed and replaced as the result of an election.

In the run up to the 2014 cases, left-leaning commentators raised the alarm against any activist decision that would usurp a statute created through democratic means. The editors of the New York Times called the lower court’s anti-Obamacare decision “a breathtaking example of judicial activism and overreach.” Of course, those liberal voices were silent or screaming in the other direction when the will of the people was to uphold traditional marriage, but hypocrisy alone does not negate the logical force of the initial critique. “Don’t legislate from the bench” is a slogan that can cut both ways.

As President, Donald Trump will now have to decide just what kind of conservative he will place into Scalia’s seat. He could nominate someone who wants to aggressively use the Supreme Court’s ability to overturn legislation as a scalpel to mold the actions of Congress into a preferred vision of public policy, confident that a vital artery of the republic will not be nicked in the process. Conversely, he could find a nominee that sees this long-inferred power of judicial review — a job not specifically outlined in the Constitution itself — as a heavy and unwieldy hammer that should be swung only on the rarest of occasions and only to stop the most egregiously unconstitutional acts.

Perhaps, a cowboy judiciary is needed to rope and wrangle the wild horse of government that has escaped the Constitution’s barn. To be sure, conservative judicial activists usually invalidate statutes based on much stronger textual ties than the “penumbras” and “evolving standards of decency” used by judges on the left as they seek, in their own eyes, to make the world a better place. Yet, there is also danger in just turning the Supreme Court into our super-legislature — a body that would not only return previously stolen issues like abortion and marriage to the democratic process but would also regularly invalidate the output of elected government officials on conservative grounds. Fight fire with fire and sometimes you just get burned. “Do unto others as you would have them do unto you” is still good advice.

Shaping culture, building political support, and overcoming the many obstacles of the legislative process are all difficult endeavors. Those on both the left and the right can be tempted by the short-cut of turning the biggest issues of our time over to nine learned lawyers in robes. When Donald J. Trump raises his hand and looks into the eyes of Chief Justice John Roberts, however, he should think hard about the value of judges who defer to democracy.

 

John Murdock is a law professor at the Handong International Law School, a Christian institution teaching American law in South Korea.

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  • Rodney Custer

    My aunt Martha’s prize cake recipe ‘fell’ during the baking. I have it on good authority THAT is the reason Trump won.

  • jayceej

    I certainly could be wrong, but it was my understanding that democratic, liberal, conservative, legislative, etc. were not the guidelines, but only the Constitution. Using all those others is why we got into trouble in the first place. And it’s been going on for a very long time.

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