A call for judicial independence

Despite the talk radio criticism facing him today, United States Supreme Court Chief Justice John Roberts is a conservative justice and quickly becoming one of the greatest figures in modern American history.

President George W. Bush appointed him, and landmark decisions like Citizens United and Hobby Lobby cement him as a conservative justice. On Friday, he again sided with the conservatives of the court in declining to extend the 14th Amendment to include marriage equality. That wing lost, and Obergefell v. Hodges was the reason that the White House, the Little Rock pedestrian bridge and millions of hearts were lit in rainbow colors over the weekend. It was a bombshell case during a term of epic decisions. So why are conservatives calling for the chief justice’s head?

There is a difference between judicial conservatism and political conservatism. Judicial conservatives call balls and strikes regardless of which side they support personally. Political conservatives want the ideological outcome in which they believe, no matter what.

Chief Justice Roberts knows that the latter philosophy is wrong for an independent judiciary. He is a student of the reasoning and impact of the Dred Scott decision. He told me at a reception one night in Washington, D.C. that when the Court has tried to resolve the key political issues facing the nation at any given time, it reached the wrong decision and undercut its own legitimacy. He is committed to not making that same mistake, and it shows.

King v. Burwell was handed down one day before the Supreme Court invalidated bans on same-sex marriage. By any definition, this was an historic week at the Supreme Court. The King decision certainly yielded a number of big winners. The President won because (again) his signature accomplishment was preserved. Sixteen million Americans who have health insurance because of Obamacare won because, well ... they still have it. And one should never doubt that Republican presidential candidates won because they do not have to act happy about destroying our healthcare system while they have no plan of their own to implement. Rather, they get to engage in what has to be two of their favorite things: bashing the Supreme Court and bashing Obamacare.

But why would a conservative chief justice uphold Obamacare twice given the opportunity to kill it? Because he thought he had no choice.

I have no doubt that had John Roberts been in the United States Senate when it was being debated, he would have voted “no” on Obamacare. But, in King, the Chief Justice kept his pledge to not be an activist judge. He could have easily interpreted the law’s “inartful” language in a way that would have cratered the system. An activist judge would look for any excuse to strike down a law he does not like. However, a conservative, non-activist judge relies upon established rules of statutory interpretation. Just because a law is poorly written does not mean that the court should invalidate it, and the legislative intent must be upheld if possible.

Laws must be read as a whole. The Chief Justice made clear that he does not think that the Affordable Care Act is well written. But he also clearly articulated that the law’s intent was to fund and create a healthcare system modeled after Mitt Romney’s plan in Massachusetts. He interpreted the law consistently with congressional intent rather than “legislate from the bench.” Such honor is why the American judicial system continues to endure. The founding fathers intentionally insulated federal judges from political pressure for that very reason.

The unfortunate contrast, of course, is the Arkansas Supreme Court. Its justices are elected, forcing politics into the branch that should be independent. Its inner workings are now subject to an Arkansas Judicial Discipline Commission investigation regarding our own marriage equality case. Few expect it to be flattering to the integrity of our court.

The Arkansas Supreme Court heard arguments seven months ago in an “expedited” proceeding regarding our constitutional definition of marriage. I was still Attorney General at the time. I believe in marriage equality, but I defended the Arkansas Constitution because that was my sworn duty. But no party got resolution from the Arkansas Supreme Court, which waited until Obergefell was decided and dismissed the case without an opinion.

More and more legal and political leaders are calling for the appointment rather than election of Arkansas Supreme Court justices. Chief Justice Roberts presents a laudable example of judicial independence. We owe it to ourselves to pursue that example.