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Jewish World Review July 2, 2012/ 12 Tammuz, 5772 The umpire strikes back By Dana Milbank http://www.JewishWorldReview.com | John Roberts was the first justice to appear from behind the curtains when the buzzer sounded in the Supreme Court chamber at 10 a.m. sharp. He forced a tight grin and scanned the audience, which, on this historic day, included several members of Congress and retired Justice John Paul Stevens. The only hint of what was afoot came from Justice Antonin Scalia, who, taking his place at the chief justice’s right, bowed his head as if in mourning. “I have the opinion in NFIB v. Sebelius,” Roberts announced matter-of-factly, as if stating that he was about to admit a new crop of lawyers to the Supreme Court Bar. His words were so measured and his delivery so calm that 14 minutes elapsed before he signaled which way the decision had gone — by answering those who wanted to declare the Obama health-care law unconstitutional with these two dreaded words: “we disagree.” In the audience, Sen. Orrin Hatch (R-Utah), an opponent of the law, folded his arms across his chest, his mouth slightly agape. Sen. John Barrasso (R-Wyo.) put his chin in his hand. Rep. Tom Price (R-Ga.), a leader of House conservatives, shook his head. Scalia was reclining in his chair, staring blankly. Justice Clarence Thomas was practically horizontal. Roberts explained why he had sided with the four liberal justices: not because he thought the health-care law was “good policy” but because there wasn’t a constitutional reason to invalidate the individual mandate at the core of the law. “We possess neither the expertise nor the prerogative to make policy judgments,” he wrote in his majority opinion, which he read in part from the bench. “Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.” Whatever one thinks of the health-care ruling, Roberts’s opinion was extraordinarily brave. It was the biggest case yet for the young Roberts Court, and expectations on both sides were that the chief justice and the four other conservatives would deliver a majority opinion consistent with their political preferences — much as the Rehnquist Court did in Bush v. Gore. But Roberts chose a different path. He forged a middle ground that spared the nation the political crisis that would have come from striking down the president’s signature legislative achievement. In the process, Roberts went a long way toward reestablishing the legitimacy of the court, which could have importance far beyond health care. The justices’ standing is in serious jeopardy — in a recent Gallup poll, only 37 percent of Americans had a high degree of confidence in the Supreme Court — but the chief justice gave a powerful rebuttal to skeptics who believe the justices are politically motivated. In his confirmation hearing seven years ago, Roberts famously described himself as an umpire calling balls and strikes, employing humility and confronting “every case with an open mind.” Since then, many on the left have come to view Roberts as just a more affable version of Scalia, Thomas and Justice Samuel Alito. But in the case that counted most, the umpire struck back. Because the individual mandate in the health-care law qualifies as a tax, Roberts concluded, and “the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” This stunned liberals. Rep. Laura Richardson, a California Democrat, thanked on the steps of the court “Chief Justice Roberts for showing, for the first time in a long time, that government can work if we focus on the facts.” And it enraged the conservatives who once adored Roberts. Rep. Michele Bachmann (R-Minn.), who had been in the courtroom, railed: “Clearly this is an activist court. . . . America will never be the same.” On the sidewalk in front of the court, the fury and insanity of American politics were on display: tea party activists waving flags and ungrammatical protest banners, evangelicals prostrating themselves on the pavement to pray, proponents of government-run health care dressed as belly dancers, and the two sides shouting taunts at each other. Roberts got a taste of that inside the chamber. Justice Anthony Kennedy, in dissent, accused the Roberts majority of “judicial legislation,” of “vast judicial overreaching,” and of trying to “force on the nation a new act.” Roberts pursed his lips and stared at the desk in front of him. Justice Ruth Bader Ginsburg, in her partial dissent, objected to parts of Roberts’s reasoning but embraced the conclusion because Obamacare “survives largely unscathed.” Roberts turned a pained gaze toward the florets on the ceiling. Surely, the chief justice did not want to uphold the health-care law. But in doing so, he upheld his integrity and that of the Roberts Court. Every weekday JewishWorldReview.com publishes what many in Washington and in the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here. Comment on Dana Milbank's column by clicking here. Previously: • 06/25/12 Norquist delivers the GOP's marching orders • 06/19/12 The left, feeling left out • 06/18/12 Skip the falsehoods, Mr. President, and give us a plan • 06/15/12 The Wall Street Senate • 06/13/12 Jeb Bush's heresy • 06/12/12 Pileup at the White House • 06/11/12 Obama's fate could be in Europe's hands • 06/04/12 Welcome to Camp Competitive • 05/31/12 Digging a racial grave • 05/30/12 A new conspiracy theory: Is Romney a unicorn? • 05/29/12 Do Republicans really want to clone one for the Gipper? • 05/24/12 Obama's protectors are under the microscope • 05/22/12 Obama's Old World mess: Allies are coming up short at a key moment • 05/16/12 Where have all the candidates gone? • 05/15/12 Barack Obama, the first female president • 05/14/12 Irrationality wins: Voter cure for Congress's failures will likely backfire • 05/08/12 Obama's marriage mess: His advisers scramble to clean up his 'evolution' • 05/07/12 Taking out Dick Lugar • 05/03/12 Gingrich may have ended campaign, but he will remain out of this world • 05/02/12 Our do-almost-nothing Congress • 05/01/12 President Obama, campaigner in chief • 04/25/12 Romney's immigration Etch a Sketch • 04/23/12 A congressional deal on immigration? Dream on • 04/19/12 Dems battle back against Republican 'war on women' • 04/18/12 Debauchery: An American govermental specialty • 04/17/12 Silent witness • 04/12/12 Rebuffing Obama's gimmicky 'Buffett Rule' • 04/11/12 Santorum's Gettysburg surrender • 04/09/12 The facts vs. Mitt Romney • 04/06/12 Mitt Romney, talking to the press, keeps the press at a distance • 04/05/12 From tracking al-Qaeda to tracking the wayward spouse • 04/04/12 Budget cuts as back-door deregulation • 03/26/12 My pet Mitt • 03/22/12 Mitt Romney's latest gaffe may be etched in history • 03/20/12 Supreme Court conceives of life after death • 03/15/12 Conservative for Obama: The British PM as campaign prop • 03/14/12 In Section 60, a silent search for meaning • 03/13/12 Super Friends, unite • 03/12/12 It's time to believe: Romney's a winner • 03/07/12 Settling in to Washington's ways • 03/06/12 AIPAC beats the drums of war • 03/05/12 Did Republicans forget the women's vote? • 02/29/12 Mitt Romney's acceptance speech, in (mostly) his own words • 02/28/12 Common ground becomes a great divide • 02/27/12 An expert witness for the GOP gender gap • 02/21/12 Where Romney shines • 02/15/12 A Republican death wish? • 02/14/12Obama's budget games • 02/13/12 Are GOPers playing right into Obama's hands? • 02/08/12 Obama pumps the compressor of Joe Hudy's Extreme Marshmallow Cannon • 02/07/12 Abramoff's atonement • 02/01/12 Why we in the media just love Newt • 01/31/12 The end of the road for Newt Gingrich? • 01/25/12 Gingrich is Obama's best surrogate • 01/24/12 Tim Pawlenty, Mitt Romney's attack dog • 01/16/12 Mitt Romney's Al Gore problem • 01/12/12 Kamikaze Gingrich, on the loose in South Carolina • 01/11/12 Journalists' campaign trail secrets revealed • 01/10/12 Mitt Romney's money problem • 01/09/12 Newtonian exceptionalism • 01/05/12 Mitt Romney out of control • 01/04/12 Indecision 2012: In Iowa and the GOP • 01/03/12 Rick Santorum's curious closing argument • 12/28/11 A few cracks in my crystal ball • 12/23/11 A few cracks in my crystal ball • 12/20/11 Strange brews and views? • 12/19/11 Cellphone ban would be a distraction • 12/15/11 Harry Reid, Mitch McConnell and the Malfunction Minuet • 12/14/11 The presidential auction of 2012 • 12/12/11 Newt's tactics comes back to haunt him • 12/06/11 Can an anthem save Occupy non-movement? • 12/05/11 The winner of the GOP campaign: Washington • 11/30/11 Barney the bully: Congressman Frank's other legacy • 11/23/11 Jon Kyl's search-and-destroy mission • 11/21/11 Pay to play, brought to you by Washington • 11/17/11 Big enough to save the supercommittee? • 11/16/11 Why Newt Gingrich won't last • 11/08/11 The 2012 campaign gets seedier • 11/06/11 A Machiavellian model for Obama • 11/03/11 The Herman Cain crack-up • 11/01/11 Cain can --- he will survive • 10/27/11 Stuntmen of the supercommittee • 10/26/11 Democrats on the sidelines • 10/24/11 Rick Perry's birther Parade • 10/24/11 The birthers eat their own • 10/19/11 The GOP's middle man • 10/17/11 The waiting for nothing Congress • 10/12/11 Sparsely occupied D.C.: Why the movement hasn't caught on • 10/10/11 Can Obama strike an alliance with Occupy Wall Street? • 10/06/11 Chris Christie, such a presidential tease • 10/05/11 Obama and his foot soldiers go toe to toe • 09/28/11 Cain could deliver • 09/26/11 Republicans? Mr. Nice Guys? • 09/22/11 Why Ron Paul is winning the GOP primary • 09/21/11 I am a job creator who creates no jobs • 09/20/11 Obama launches a revolution • 09/19/11 Dems for Romney? • 09/14/11 ‘Supercommittee’? More than stupor committee • 09/07/11 Mitt Romney finds his (corporate) voice • 09/01/11 The infallible Dick Cheney • 08/31/11 This liberal says Perry is the ultimate conservative candidate • 08/29/11 Wanted: More bite from Obama the Great Nibbler • 08/10/11 How Rep. Austin Scott betrayed his Tea Party roots • 08/09/11 The most powerful man on Earth? • 08/08/11 The FAA shutdown and the new rules of Washington • 08/04/11 Lt. Col. Allen West fires a round at the Tea Party • 08/03/11 Government on autopilot • 08/02/11 Dems mourn debt deal like death • 07/27/11 Life imitates sport • 07/26/11 Obama and Boehner take on Washington • 07/21/11 Why Americans are angry at Congress • 07/20/11 The new party of Reagan • 07/18/11 Rob Portman, the boring Midwesterner who could bring sanity to the debt debate • 07/13/11 John Boehner's bind • 07/04/11 Stephen Colbert, Karl Rove and the mockery of campaign finance • 07/01/11 President Puts Up His Dukes, As He Ought To • 06/28/11 Rod Blagojevich verdict: All shook up • 06/27/11 Progressives voice their anger at Obama • 06/24/11 ‘Mission accomplished,’ Obama style • 06/22/11 Jon Huntsman's first step toward oblivion • 06/21/11 Scott Walker finds making bumper stickers is easier than creating jobs • 06/20/11 A day of awkwardness with Mitt Romney • 06/06/11 Hubris and humility: Sarah Palin and Robert Gates on tour • 06/02/11 The Weiner roast • 06/01/11 Congress clocks in to clock out • 05/30/11 Hermanator II: No More Mr. Gadfly • 05/24/11 How Obama has empowered Netanyahu • 05/24/11 Pawlenty bends his truth-telling • 05/20/11 Default deniers say it's all a hoax • 05/18/11: Gingrich gives voice to moderation • 05/17/11: Donald Trump and the House of Horrors • 05/16/11: The medical mystery of Mitt Romney • 05/12/11: The body impolitic: Schock photos should tempt lawmakers to cover up • 05/10/11: Muskets in hand, tea party blasts House Republicans • 05/09/11: The GOP debate: America -- and the party -- needs the grown-ups • 05/05/11: Mitch Daniels, an alternative to scary • 05/03/11: Obama's victory lap • 05/02/11: How the journalist prom got out of control • 04/28/11: Obama's birther day: Why did he lower himself by appearing in the briefing room? • 04/27/11: Obama, lost in thought • 04/24/11: Andrew Breitbart and the rifts on the right • 04/22/11: Ten Commandments for 2012 • 04/21/11: Obama likes Facebook. Facebook likes Obama. • 04/18/11: Without Nancy Pelosi, Obama is adrift • 04/15/11: If progressives ran the world • 04/14/11: Faith in political apostasy • 04/13/11: One man's revolution is another's political expediency • 04/11/11: Shutdown theatrics • 04/06/11: Paul Ryan's irresponsible budget • 04/05/11: Robots in Congress? Yes, we replicant! • 04/04/11: Robert Gibbs, Facebook and the White House corporate placement service • 04/01/11: Haley Barbour, the fat cats' candidate • 03/31/11: Republican freshmen in House shut down compromise, and possibly the government • 03/30/11: Coburn and Durbin, the dynamic duo of the debt crisis • 03/28/11: The Obama doctrine: A gray area the size of Libya • 03/24/11: Dems as Weiners • 03/23/11: Obama's quick trip from tyrant to weakling • 03/17/11: Who's afraid of Elizabeth Warren? • 03/15/11: The underwear flap over Bradley Manning • 03/10/11: In Senate's debt debate, talk isn't cheap • 03/09/11: With Obama's new Gitmo policy, Administration officials had some 'splainin to do • 03/02/11: Issa press aide scandal is like bad reality TV • 02/25/11: Jay Carney: Mouthpiece for an inscrutable White House • 02/14/11: The Donald trumps the pols at CPAC • 02/09/11: Arianna Huffington's ideological transformation © 2011, Washington Post Writers Group