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Mr. Roberts Rides Again

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"Who knows what causes a judge to decide as he does?" mused Justice Roberts, reflecting on his bombshell decision to break ranks with his conservative brethren and save the Supreme Court. "Maybe the breakfast he had has something to do with it." That Roberts -- who up until this case had been a source of clockwork opposition to the president's sweeping agenda of progressive reforms -- would simply change his mind when the hour came to pass judgment on a central tenet of liberalism was largely unthinkable. Not Roberts, with his miserly reading of the Commerce Clause. Not Roberts, whom Senate Democrats had accused at his confirmation hearings of possessing a "corporation frame of mind." Not Roberts, the former industry advocate who had been tapped for the Court by the president's much-maligned Republican predecessor.

Three-quarters of a century later, Owen Roberts is an historical footnote, obscure to all but the nerdiest circles of diehard SCOTUS-heads. Yet his decision in West Coast Hotel Co. v. Parrish to uphold the constitutionality of state minimum wage laws at a time when the Court's reputation for rigid obstructionism and seething partisanship threatened to devastate public confidence in the integrity of the Judicial Branch marked one of the truly pivotal moments in American history. Roberts' about-face would come to be known as "the switch in time that saved nine"; while it had the practical effect of forever turning the tide on the Roosevelt presidency -- after Parrish, not a single piece of New Deal legislation would be overturned again -- its most critical consequence was to restore the people's faith, so desperately essential to our democracy, that the Supreme Court could transcend the rabbling, rattling arena of political brinksmanship and see that justice was done.

We don't know what Chief Justice John Roberts had for breakfast on the morning he stood up for the Affordable Care Act; we can't divine his motivations -- institutional, constitutional, moral, political, strategic, or otherwise -- any more clearly than we can those of Mr. Roberts the First. All we can know with certainty is that his bold departure arrived, like the switch in time, at a moment when the Court stood poised to engage in a kamikaze mission of inane and extralegal self-destruction, threatening to perhaps permanently atomize its own credibility for the sake of a partisan disagreement. By 1936, consistent judicial frustration of the president's efforts to revive a dolorous economy had set the stage for the High Court's downfall in the even-higher court of public opinion. By 2012, while those familiar battles had been freshly waged in Congress, the Court's cataclysmically unsound decisions in cases such as Bush v. Gore and Citizens United v. FEC had summoned a no-less-serious crisis of confidence. For whatever reason, each Justice Roberts saw fit at the last possible moment to swing the rudder, to turn, however momentarily, away from the morass of ungrounded ideology and toward those enduring principles that our nation's own intelligent designers had hoped might forever animate the bench: dispassionate restraint, sincere impartiality, and scrupulous fidelity to the spirit of the Constitution.

The smart money is on the love affair between the Chief Justice and progressive Americans ending roughly around the time when the next case arises. Where Owen Roberts -- who served long enough on the Court to eventually become its last remaining Republican appointee -- would ride out the remainder of his tenure untrusted by the left and a traitor to the right, his namesake is well positioned to redeem a portion of his newfound judicial integrity for a few free passes back to the right wing when the justices robe up again in October. Whether conservatives will welcome him back with open arms remains to be seen; the Chief Justice is undoubtedly a politically conservative fellow at his core, but it will take an awful lot of activist valentines before many Republicans will let themselves learn to trust again. For now, he's saved the Court at a time when it badly need saving, and he did it by making a very easy legal decision and a very difficult political -- and certainly personal -- one. And if that mystery breakfast never finds its way back onto John Roberts' menu, he will nevertheless be remembered for his most auspicious waffle, the decision he made to place the American experiment ahead of the political moment.

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