The Second Hander


In my last article on the legal challenge to Obamacare I expressed optimism that Obamacare would be struck down. However, in an earlier Liberty article I had said it had only a 1% chance of being overturned. As it turns out, Obamacare was upheld, in a 5–4 decision that is a devastating loss for libertarians and the death of hope for saving the US healthcare industry from a slow decline into socialized medicine.

What happened? In my last essay I said that Justice Kennedy was the swing vote, and he was expected to vote against Obamacare. And that's what he did. With his vote we should have won. But he was not, in fact, the swing vote. Chief Justice John Roberts, whom George W. Bush appointed to be a conservative bulwark, turned traitor and voted with the court’s liberals. Why?

When I was in law school the chief justice was still newly appointed, but he had already gained notoriety as a person deeply concerned with how the public viewed “the Roberts Court” (Supreme Court eras are often named after the chief justice who presides over them — the Rehnquist Court, the Warren Court). Roberts has proven himself a conservative in other opinions. He is reported to be a brilliant man, and surely knew what was at stake in the Obamacare case. But it appears he was so deeply worried that the public, influenced by both the Citizens United and the Obamacare decisions, would perceive the Roberts Court as an extremist ultra-Right court that he cared more about what other people thought of him than he did about his own ethical convictions. Judges do not face reelection, but the famous ones often care deeply about how history will view them. To simplify things, he was too embarrassed to be a principled conservative.

In that sense I liken him to Peter Keating, the “second hander” in Ayn Rand’s novel The Fountainhead. Peter Keating has no conviction or integrity, but “selflessly” lets other people create and define the goals and aspirations that he then pursues with ruthless ambition. Chief Justice Roberts has no internal principles, but simply goes with the public sentiment, or what he perceives to be other people’s perceptions of his court. The Supreme Court was designed by America’s founders to be a check on the actions of Congress in order to protect the American people from unconstitutional laws. The Court has failed, and the commerce clause has now lost all meaning. But the origin of this crisis lies with human psychology, not legal doctrines.

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Interesting coincidence: this is only the second Justice SCOTUS has had in its long history with the surname Roberts, though that is a common enough name in English speaking countries.

Why do I find that interesting? Because the other one was Owen Roberts, the fellow whose "switch in time" in 1937 led to the legitimation of a raft of New Deal programs, short-circuiting an effort to pack the court.

Another Roberts, another era in which again intense political pressure is brought against a court, another switch.


I'd say Roberts was being a very principled conservative.

Conservatives believe that government should have a great deal of control over individuals' lives. Why should health care be different?

Russell Hasan

Taking your comment at face value, the difference is that conservatives tend to favor that the state control people's social lives and values, but there is a major strand of conservative thinking which values economic freedom, at least to some degree. Conservatives are not as principled as libertarians in their commitment to economic freedom. But the Supreme Court's conservative voting bloc, with the exception of Roberts, voted against Obamacare. Opposition to Obamacare was widely viewed as the conservative position. Thus, Chief Justice Roberts betrayed the conservatives, as well as the libertarians and all Americans as a nation. Your remark is great in terms of abstract theory, but it misses quite a lot in terms of practical reality.


I'd also say, that "health care" is much more of a "social" issue than an economic one.

One just has to look at the recent government funded and required birth control debate. Conservatives are in a great froth to gain control over such a system that they can control such decisions. They are equally, greatly, disappointed they are (currently) not the ones making those decisions. Their only dissapointment is they are not the ones in charge of such laws. "once they are" they will make sure government "encourages" others to behave as they wish.

As Romney himself has demonstrated, Conservatives would love to be the ones making those "health care" decisions for others. Roberts decision is perfectly in line with mainstream conservative thought.

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