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On June 28, 2012, Supreme Court Chief Justice John Roberts cast the deciding 5-4 vote to uphold as constitutional the landmark Affordable Care Act previously passed by the US Congress.---
Roberts is considered a conservative judge, having been nominated to the Supreme Court by George W Bush after working as White House counsel to Pres. Ronald Reagan and as deputy solicitor general under President George HW Bush. Therefore, when Roberts sided with the liberal faction of the Supreme Court and upheld the Affordable Care Act, multiple news outlets declared his apparently non-political decision a "profile in courage," a reference to John F Kennedy's 1955 book of the same title.
Kennedy was a US Senator from Massachusetts when his Pulitzer Prize-winning book, Profiles in Courage, was published in 1955. In this text, Kennedy asserts that the strength of representative government comes when elected officials exercise sound, long-term judgment rather than short-term popular impulse—in Kennedy's words—"faith in their ultimate sense of justice, faith in their ability to honor courage and judgment, and faith that they will in the long run act unselfishly for the good of the nation."
This model of representative behavior was supported by examples of individual political courage throughout US history: John Quincy Adams' support of the Embargo Act of 1807; Daniel Webster's and Thomas Hart Benson's roles in the Compromise of 1850, which curtailed the American Civil War for almost 10 years; Sam Houston speaking out against the secession of Texas, often needing pistols in hand at Lone Star State political gatherings; and Robert Taft declaring the post WWII Nuremberg trials a farce and contrary to the "ex post facto" (after the fact) principle of American justice.
Another example of political courage was Edmund G Ross' voting down the impeachment of Andrew Johnson, akin in the modern age to a Republican balking the party line during the Clinton impeachment proceedings. The political feud surrounding the 2000 US Presidential election echoes the bitterly disputed 1876 Hayes vs. Tilden contest, where Lucius Lamar courageously pushed his party to defer to a nonpartisan election commission to solve the dispute rather than aggressively pursuing partisan avenues, unlike the 2000 election mess.
Through Profiles in Courage, Kennedy asserts that "national interest, rather than private or political gain, furnished the basic motivation for the actions of those whose deeds are herein described."
Yet was private or political gain removed from Kennedy's publication of Profiles in Courage? Was courage actually demonstrated with Roberts' decision in the Affordable Care Act case of 2012?
A closer look shows that both Kennedy and Roberts were acting with the highest orders of individual interest, using the most sublime of political gestures. In Kennedy's case, significant and credible evidence later emerged that he wrote only the introduction and conclusion to Profiles in Courage, while his principal speech writer Theodore Sorensen researched all of the supporting examples and wrote most of the book.
Yet Kennedy claimed the work as his own, and it helped to propel him into the national spotlight and the Presidency in 1960. Similarly, Roberts' health care decision was a political masterstroke not a courageous moral stand. Through brilliant legal sophistry, he gave all constituencies something important, despite the strong argument that the Affordable Care Act is constitutional under BOTH the Commerce Clause and the federal government's right to tax.
For Roberts’ conservative base, he declared the Affordable Care Act unconstitutional under the Commerce Clause, which sets a significant precedent on the degree to which the federal government may regulate commerce in the future. For the liberal faction, the Affordable Care Act remains intact due to the Congressional right to tax and spend. For the Supreme Court, the “Justice Roberts Era” maintains a sense of legitimacy at a time when public approval and perceived political neutrality of the Supreme Court is at an all-time low. Following up the politically influenced Citizens United v. Federal Election Commission and Bush v. Gore cases, a third partisan decision by the Supreme Court may have seriously undermined its future credibility.
Lee Miller is the author of the Bengali novel, Kali Sunset (www.clovercreekpress.com), the story of orthodox Hindu Mrs. Sona Choudhury raising her family amidst the cultural evolution of 20th Century India.
Santa Fe Reporter