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2012

Chief Justice Roberts' key message lost on many critics

Madison, Wisconsin - July 16, 2012

By Chief Justice Shirley S. Abrahamson

Of the millions of words written and spoken about the Supreme Court's decision in the Affordable Care Act case (commonly called the health care case), too many have focused on labels and politics, too few on the principles of judging. Chief Justice John Roberts' decision, regardless of anyone's opinion of whether he was "right" or "wrong," reflected a basic approach to judicial service that many of us who wear black robes at work try to use.

That's one reason it's ironic that liberals and conservatives alike – those who self-identify and those upon whom meaningless stereotypical labels are imposed – have joined together in the wake of this decision. They have coalesced around the object of their wrath, Chief Justice Roberts. Conservatives have called the Chief Justice cowardly and arrogant, and questioned whether he is having a midlife crisis. Some have even suggested he ought to be impeached.  Liberals, on the other hand, have labeled the decision a "Trojan horse" and are busily predicting all sorts of disastrous unforeseen consequences.

Unfortunately the critics have largely ignored the first four pages of the Chief Justice's decision. There the Chief Justice sets forth what he calls basic principles of judging –principles to guide a conscientious judge. The Chief Justice adheres to the text of the Constitution and the statute and precedent and sets forth these incontrovertible basic principles:

  • Public policy is for the legislature.
  • Judges do not consider whether a legislative act embodies sound policy.
  • Judges ask only whether the legislative or executive branch has the power under the constitution to enact the challenged provision.
  • The judiciary has an important but limited role.
  • The judiciary should have a general reticence to invalidate the acts of the elected members of the legislative and executive branches.
  • The Bill of Rights imposes restrictions on state and national governments.
  • State governments are not granted power by the U.S. Constitution but may be restricted by it.
  • The U.S. Constitution has granted enumerated powers to the national government. The independent power of the states serves as a check on the power of the national government.
  • By denying any one government complete jurisdiction over all concerns of public life, federalism protects the liberty of the individual from arbitrary power.

The Chief Justice's basic principles will long be remembered and should guide fair, neutral, impartial and non-partisan judges.

The Chief Justice has been criticized for perhaps changing his mind about the outcome after hearing the arguments of counsel, studying the briefs and record, listening to his colleagues, and writing drafts. Having sat on thousands of cases, I can say that a deliberative process is the best way to develop sound, well-reasoned, understandable, fair and thorough decisions. It is not a flaw but a strength that our process allows us to create, discuss, rethink, argue about, edit, discard, add and subtract until an opinion is just right.

In one of his most notable sentences, the Chief Justice said the courts are not meant to save the people from their own political choices. The people of Wisconsin have a long and proud history of grappling with complex political choices – including the choice, since 1848, to elect judges.  That is an issue that has drawn its share of disagreement and dissent, especially in recent years.  But Wisconsinites also have a long and proud history of seeking and finding common ground, and I believe we can join together in supporting the principles at work in the introductory pages of the Chief Justice's health care decision.

Judges cannot generally respond to criticism of their decisions, so the Chief Justice has done the next best thing: he took off for Malta, in the middle of the Mediterranean Sea, telling an assembly of judges and lawyers that "an impregnable island fortress seemed like a good idea."

May the Chief have a good trip.

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