“I’m a the Chief Justice of the United States Supreme Court. My main duty is to apply the law to the facts before me. The Constitution, ideally, is the fundamental law of the land, and trumps all other laws. However, I need to take the long view. If the Court is discredited, one of the three branches of government will have been crippled, and therefore may not adequately be respected in the future (remember when Andrew Jackson said, ‘John Marshall has made his decision; now let him enforce it!.’ Yeah, I remember it, too).
“In 2000, the Court was faced with an agonizing decision. Even though Bush was ahead during every recounting of the votes, a Constitutional crisis was emerging that had to be cut short by a decision of the Court. There was no other choice. The law wasn’t 100% clear, but we came up with something that ended the standoff, and seemed to reflect what the recounts generally were saying anyway. Nevertheless, one effect of this process was the reinforcement of the perception that the court has become politicized — that five conservatives can trump four conservatives, or vice-versa. The law wouldn’t be the law at that point; rather, the court would be just another partisan über-legislature. (Clinton and Obama didn’t help matters by appointing hyper-liberals like Breyer, Ginsburg, Sotomayer, and Kagan, by the way).
“So as I surveyed the landscape in 2012, I feared that the Court would be perceived as irredeemably partisan were I to rule with the conservatives as a monolithic bloc. So, in search of a satisfactory resolution, I decided also to consider other, opposing “truths” as well.
“Again, I weighed not just one truth, but competing truths. The main truth, again, is that a judge should apply the law to the facts; period. But there are many instances in which simple truth-telling isn’t satisfactory. For example, if your grandmother says, ‘How do you like my hair-do?’ Her hair may look like a bird’s nest, but you lie and say she looks beautiful. The “truth” that you should show love and kindness to your grandmother “trumps” the literal truth that she looks frightful. A more serious example is seen in ‘Les Miserables,’ in which Victor Hugo has a nun lying to the relentless Inspector Javert, who has come to her convent in search of Jean Valjean. After the nun lied — twice — by saying Jean Valjean wasn’t there, Jean Valjean said, ‘Oh, holy maiden . . . may this falsehood be remembered to thee in Paradise.’
“The falsehood I decided to perpetuate in this case, of course, was that I believed that Obamacare was Constitutional. The reason the nun in Les Miserables lied was to save Jean Valjean, since he had already been redeemed; and a life behind bars would only nullify all the good he could otherwise do. That consideration trumped even the injunction against bearing false witness.
“In my case, I am hoping against all hope that by declaring Obamacare constitutional, I will have done my part to save the republic by upholding the principle that, generally, the people’s will is paramount in a democracy and in any republic. Even though Obamacare was passed without a single Republican vote, it was still the will of the people at that time, inasmuch as it was the expressed will of the chief executive — elected by the whole people — and a majority of the 535 members of congress — again, elected by the whole people.
“So I decided to uphold the verdict of the people. This decision flew in the face of my conviction that the law was unconstitutional (rumors that I wrote most of the dissent are true, by the way . . . ).
“But it was my fervent hope that the people would then see the Court as a body willing to uphold the law even in the face of the ideological tendencies of the justices — and even though I was forced by circumstances to set this example myself — alone among the justices.
“Remember Judge Bork? Twenty years ago, he wrote in his book “The Tempting of America” that unelected judges generally should not substitute their judgment for that of the elected branches. Today the tables are turned. Back then, unelected liberal judges were shamelessly substituting their views for those of the people and their elected representatives (Don’t get me started on Roe v Wade — even if you favor abortion rights, this was a horrendous decision, poorly reasoned; and it overturned the democratically-enacted state laws of 50 states). Today, even though conservatives haven’t shown that kind of arrogance — at least not yet — there is a risk that they could do the same in reverse (Irony: Justice Ginsburg, in her well-written but tendentious opinion, favorably quoted Bork’s book!)
“So, I tried. God knows; I tried to do the right thing. Obamacare is a mess. In the extremity of my position I chose to err on the side of favoring the people’s representatives, whom the founding fathers knew “ran hot” as against the more deliberative and “cool” Supreme Court, of which I am Chief Justice. As custodian of that body, I would beg that the country understand, and, if necessary, forgive me.”