In an oddity of legal and political history, two major expansions of federal power have been enabled by two different members on the U.S. Supreme Court, both with the surname “Roberts.” People say “no more Bushes in the White House.” Perhaps it’s time for a new slogan: “No more Roberts on the Supreme Court.”
In the 1930s, president Franklin D. Roosevelt to increase the role of the federal government. He was blocked by a majority of members of the Supreme Court who (rightly) held that FDR had overreached. In response, FDR suggested that, well, maybe the justices on the court needed some extra members to help them out–people who would, ahem, be agreeable to the president’s view of things. In what has been called “the switch in time to save nine,” Justice Owen Roberts reversed his philosophy, and upheld FDR’s plans.
Fast forward to 2012. Opponents of Obamacare pinned their hopes on two possibilities. One was a Republican presidential victory in November. The other was that in June, the Supreme Court would strike down a key portion of Obamacare, and (continuing the theory) as a result, the entire law.
Instead, a member of the Supreme Court, who had previously infuriated President Obama with his rulings, found a novel way to uphold the individual mandate, by which the feds took the unprecedented step of requiring that you buy a product (health insurance) merely as a condition of living. His name: Chief Justice John Roberts.
In the 1937, an expansionist president’s plans were saved by Justice Roberts. In 2012, an expansionist president’s plans were saved by … Justice Roberts.
Perhaps it’s time to say: Nobody named Roberts on the Supreme Court. Granted, that’s silly, but so, it appears, is the idea of depending on the courts to save constitutional governance. Taming the federal government, instead, depends on changing cultural expectations about the role of government–a very challenging task.