John Roberts and the Defiance of the Tribe

In choosing a courageous path in the health-care ruling, the chief justice acted to protect and strengthen institutions that are in a very fragile place.
by | July 2, 2012

The lesson in John F. Kennedy's book "Profiles in Courage" is that courage is most required when you oppose your friends, not when you oppose your enemies. There are no more vicious and personal attacks in public life than those launched against an individual who acts in a way that seems to make one a traitor to one's own tribe. This has always been so, and it happens whether one's tribe is on what is today the left or the right. We see this frequently when the pack growls at one who starts to venture outside the accepted lines. Almost always the result is a hasty retreat back to orthodoxy. The most recent example that comes to mind is when Newark Mayor Corey Booker, a rising star in the Democrat firmament, suggested that what Mitt Romney's private-equity firm Bain Capital had done was a basic part of capitalism.

Chief Justice John G. Roberts Jr.
Chief Justice John G. Roberts Jr.

Whether you agree with the Affordable Care Act or not, you have to recognize that Chief Justice John G. Roberts Jr.'s decision to be the deciding vote to uphold the health-care law took great courage. He had to know the scorn with which his decision would be greeted by the members of his own tribe and the personal price he would pay. He will not be embraced by the liberals and he will be ostracized by the conservatives. The Washington Post reported that "after announcing the decision, he sat impassively while representatives of the court's conservative and liberal wings read forceful criticisms of his work." The dissenting opinion, signed by all four of the other conservative justices, set forth the values that they believe "should have determined our course today" and then proclaimed that the court's ruling "undermines those values at every turn."

Much like the senators whose decisions Kennedy described in his book, what Roberts chose was to put what he believed was right over what was best for him personally. Whether history will judge his decision well or poorly we cannot know today and will not much matter in terms of what happens to him personally in the years to come.

I think the country and its institutions — Congress, the presidency and the Supreme Court at the federal level and their equivalents in state and local governments — are in a very fragile place. Many of those in public life seem to act as if these institutions are impregnable, but they are not. We cannot continue to stretch and strain them without also acting when we can to strengthen them. It seems to me that Roberts took what is in reality a very conservative path: He acted deftly to craft a ruling that, while it will expose him to great criticism, serves to protect and strengthen these institutions and to turn our dialogue aside from an ever more confrontational posture. His decision also showed character in that it was apparently much in keeping with the views he expressed at his confirmation hearings and in his pronouncements as chief justice.

Anyone who serves in public life long enough, especially in elected office, faces these sorts of decisions, whether they occur in the glare of intense media attention or in quiet moments in an office in the county courthouse. This country has survived as long as it has because enough of its leaders have chosen the country and its institutions over their friends and their political ideology.

Kennedy closed his book with the observation that while the stories he was sharing could define courage and could offer inspiration, they could not supply courage itself. "For this," he wrote, "each man must look into his own soul." Whether you agree with him or not, I think it's fair to say that John Roberts found courage, and for that we should be grateful.

Mark Funkhouser  |  Director, GOVERNING Institute
mfunkhouser@governing.com

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