Political but nonpartisan

Some things should never be resurrected — mullets, bell-bottom trousers and court-packing among them ….

Pay special attention to the Obamacare cases, because in them Chief Justice John G. Roberts Jr., not the recently retired Anthony M. Kennedy, was the swing vote. Initially, Roberts seemed to have been ready to strike the law down on constitutional grounds, but apparently shied at the last minute because he worried that such a sweeping blow to the president’s signature initiative would undercut the court’s democratic legitimacy. This was certainly a political act — but not a partisan one.

But that sort of politics is the politics of a court that sees itself as something other than a purely partisan institution. Even if you think that this view is more lie than truth, you should recognize that the lie is itself acting as something of a check on the court, and thus on the other branches of government.

Megan McArdle

March 13, 2019

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