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Chief Justice Roberts and the Separation of Powers

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In our surprise at learning "conservative" Chief Justice Roberts had joined the "liberal" wing of the court to uphold the constitutionality of the Affordable Care Act, we allow today's ideological schism in politics to eclipse what is really at stake in the historic 5-4 decision: the separation of powers through which the Founders forged a constitution suspicious of power and anxious to hem it in with checks and balances. Alert to what in 18th century Europe were abuses of power by government, the founders created a divided framework for the public sector intended to check any one branch of government --executive, legislative or judicial -- from becoming too dominant.

Although ideology and politics play an undeniable role in its decisions, the Supreme Court must always wrestle with its role under the separation of powers, for which it carries a special burden of responsibility. Sometimes it intervenes to check what it perceives as the overreaching power of the legislature or the executive, as it did in the early 1930s in opposing New Deal legislation. In such instances it uses its power to check the power of the other branches. It is "activist" in the name of restraining the other branches. But at times it steps back and effectively leashes its own power, refusing to overturn legislation with which it may disagree politically, but which can be shown to be constitutionally grounded. At such times it honors limited government by exercising judicial restraint, checking itself. Either way, it operates in the setting of the separation of powers, using its power or refraining from using it, to assure a judicious balance.

Justice Roberts, who has made clear he will not "abdicate" judicial engagement in the name of restraint when the Presidency or Legislature overreach, nonetheless -- in examining President Obama's ACA -- opted for restraint, opted to allow the American people and the democratic process to operate unfettered by the court: "it is not our role to forbid," Roberts wrote, or "to pass upon the wisdom or fairness" of legislation, as long as it meets the standard of constitutionality.

Chief Justice Roberts promised this kind of balanced jurisprudence when being vetted for the Court, but has not always made good on the promise in the dozens of 5-4 cases in which he has consistently sided with the "conservatives." But in the second most important decision to come before his Court (I count Citizens United the most important), he showed that his commitment to the independence and integrity of the court, and to the separation of powers, was real. That so very much was at stake politically made his position the more remarkable -- although it was perhaps precisely because the case was so political that he chose to use it to make clear his commitment to judicial restraint in the name of a true balance of powers.

There is a lesson in Roberts' decision for all of us, citizens and politicians alike, on the left and the right. The efficacy and legitimacy of our politics, whatever side we are on, comes from our willingness to acknowledge and live by the underlying rules of democracy and constitutionalism, the two institutional pillars on which our political way of life rest. We can afford to bicker and battle over policy and politics, but only as long as we are one when it comes to the rules of the game and their priority over our ideological positions.

What is dangerous today about our ideological cleavages is not so much the political polarization they occasion, but the brewing disdain for our governing institutions that accompanies polarization. Chief Justice Roberts, a committed political conservative if ever there was one, reminds us that the integrity of the system is a condition for the sustainability of our disagreements; reminds us that power, whether wielded by a majority or a minority, whether seemingly public-spirited or seemingly self-interested, must be checked (and must sometimes check itself) if liberty is to be preserved. He reminds us that we each have a responsibility to check our own passions, however righteous, as the Chief Justice clearly did with his own in this historical decision -- which was in the first instance neither a victory for a Democratic President or Party nor a defeat for a Republican House of Representatives or Party, but a welcome triumph of constitutional principle in a rather frazzled democratic republic.

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