During one of the many fraught moments in the health care debate, when it looked like implacable and novel forms of GOP obstruction would kill the bill, writer Matt Yglesias the following tongue in cheek thought experiment to establish the point that just because you can do something according to, say, the letter of the law, doesn't mean it's acceptable. He wrote, "To the best of my understanding, nothing is stopping Rahm Emannuel from sauntering onto the floor of the Senate, murdering Republicans from states with Democratic governors in cold blood, having them replaced by new Democrats, and then getting a pardon from Barack Obama."
Matt's point was that norms matter. A lot.
Healthy governance isn't simply a matter of those with power playing by the technical boundaries of the rules in place, but also with some larger sense of respect for the norms of the institutions. There are certain things that just 'aren't done' even if they might very technically be permissible.
Indeed, norms are much more powerful than written, explicit rules, but the problem is that when norms go, they go very fast.
We've seen this inside Enron, and on Wall Street and in major league baseball during the steroids era. And we've seen it in governing institutions from the United States Congress to the Federal Elections Commission, where Republicans have normalized a maximalist, ceaseless, by-any-means necessary political battle. Where the Senate will deny confirmation for even the man nominated by Barack Obama to serve as Printer of the United States, or rush the country headlong towards default on its debt.
The actual official "rules" that guide the Supreme Court are preciously few in number. A majority of justices can pretty much issue any ruling they want, constrained by the (distant) threat perhaps of impeachment or a cut in funding from congress. But they are the final say on what is and is not constitutional.
And that's why the norms for the court are so important and the subject of such intense and constant debate. Should the court be like the House of Representatives—explicitly partisan and ideological place where a narrow majority is expected to vote more or less in lockstep for the favored outcomes of its "side"?
Or should judges be as John Roberts described them in his confirmation hearing. "Judges are like umpires. Umpires don't make the rules they apply them. I will remember that it's my job to call balls and strikes, and not to pitch or bat."
After joining the 5-4 majority to uphold the constitutionality of the Affordable Care Act, Roberts is getting a lot of grief from conservatives who fell in love with that metaphor, and now feel betrayed. You see the definition of an "activist" judge has always been a judge who rules differently than you would like, and this is the heart of the problem. The umpire analogy Roberts originally used is as laughably disingenuous as the slogan Fair and Balanced.
But that doesn't mean that the only choices for the court in conducting itself are some delusional vision of total neutrality on one hand and partisan trench warfare on the other. There's a whole lot of room in between those two extremes. And that's what our model of judging should be: someone with a worldview, a perspective, an outlook on life, but one who engages with the issues in good faith, who does not simply, and crudely reverse engineer his or her reasoning around a desired outcome.
Aside from his closest friends and family, no one can really know why John Roberts decided the way he did in the case of National Federation of Independent Business v Sebelius. But given how deft his decision was, how delicate a needle he threaded in simultaneously upholding the law, while also endorsing a quite conservative interpretation of the limits of the commerce clause, many have naturally come to the conclusion that Roberts' decision was motivated largely by a political and institutional desire to guard the court's—and his own—legitimacy.
So, while I think Roberts did the right thing, both as a matter of law and of politics, let's be clear, that this was inescapably a political decision. All major cases before the court can't help but be. Umpire Roberts was nowhere to be seen, but, of course, he never really existed.
In the short term, Roberts is to be credited both for upholding a law that is, in my own humble opinion and the opinion of the majority of prominent constitutional scholars, squarely constitutional. But he is also to be credited for briefly stopping a slide towards a court that truly is nothing other than the House of Representatives in miniature.
But let's also remember this is the same man who steered the court towards Citizens United, a man who oversees a court that is, according to an empirical analsysis by legal scholars Andrew Martin and Kevin Quinn, the most conservative court in 75 years. The question in the long run is if this decision signals a change of direction or simply a pause.