Kathleen Parker: The public trial of Justice Roberts

If only it were fiction.

The justice is of course John Roberts and the case involves the Affordable Care Act (ACA), aka Obamacare, which would be affordable only if the court upholds the individual mandate requiring all Americans to buy health insurance.

The left's narrative goes as follows: If the justices side with the Obama administration, they will be viewed as brilliant and nonpartisan. If the reverse occurs, why then, the justices are partisan, judicial activists who have delegitimized the court.

Writing in The New Republic, Jeffrey Rosen laid it out for Roberts, whose vote likely will be decisive: “In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. Of course, if the Roberts court strikes down health care reform by a 5-4 vote, then the chief justice's stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.”

Lest there be any lingering confusion, permit me: Vote our way, Justice Roberts, or you will go down in history as having abrogated your duty; your reputation will be destroyed; and the country will hold you accountable not only for withholding health care from the American people, but also for rolling back the New Deal.

In so many words.

Wait, the New Deal? Yes, according to many on the left, including Rosen, if the court rolls back Obamacare, it will also roll back the New Deal. Legal scholars on the right insist otherwise, noting that lawyers for the plaintiffs were explicit in denying any interest in overturning precedents.

I leave this debate to others more worthy, but the idea that decisions must be popular and/or bipartisan is silly on its face. Just because something is popular doesn't make it “right” or legally correct. And, difficult as this is to accept in our Twitter culture, Supreme Court justices needn't be popular.