David Leonhardt: John Roberts, legislator

A new book tells of political horse-trading at the Supreme Court. View in [Browser]( | Add nytdirect@nytimes.com to your address book. [The New York Times]( [The New York Times]( Wednesday, March 27, 2019 [NYTimes.com/David-Leonhardt »]( [Op-Ed Columnist] Op-Ed Columnist During a 10-day break for the Supreme Court in April 2012, several justices left Washington to give lectures or take short vacations. But both John Roberts and Anthony Kennedy remained in Washington, and Roberts used the time to try to win over Kennedy on Obamacare. The court had heard arguments on the law a month earlier, and Kennedy had already told the other justices he considered it unconstitutional. He wanted to strike it down. Roberts had a different view, wanting to invalidate some of the law and keep other parts. During their conversations that April, the two of them talked through the substantive issues that the case involved, like the law’s health insurance mandate, the cost of insurance premiums and so on. This scene is part of Joan Biskupic’s new biography of Roberts, [“The Chief.”]( The book contains a description of the justices’s behind-the-scenes maneuverings on Obamacare that’s more detailed than any other to appear so far. It’s an excellent case study of one of the biggest problems with today’s Supreme Court. Too often, it acts as a kind of super-empowered legislature. During their conversations, Roberts and Kennedy were often debating not legal questions but policy questions that are properly the purview of Congress. They were substituting their own political judgment for that of an elected legislature. In the case of Obamacare, the outcome was less than disastrous. Roberts didn’t persuade Kennedy. Yet Roberts’s vote to uphold much of the law was enough. By a 5-4 margin, the court allowed millions of people to keep their health insurance. One part of Roberts’s motivation was protecting the court’s legitimacy, rather than invalidating a major new law. But the process was flawed and unseemly, full of political horse-trading, as Biskupic describes. As a compromise, evidently intended to make Roberts more comfortable with his vote to uphold much of the law, two Democratic-appointed justices switched their votes on another part of the case and restricted a Medicaid expansion. In other high-profile cases, the justices act like politicians in an even more fundamental way: They vote their party line, with Republican appointees on one side and Democratic appointees on the other. On more technical cases, with lower stakes, these blocs are less important, and the justices frequently issue unanimous decisions. But on the biggest cases — on climate change, labor unions, campaign finance, voting rights and more — a pure partisan split is the norm. The central problem with today’s court is that it is, at once, too powerful, too political and too partisan. Roberts would reject this criticism, of course. The one point he makes over and over in his public appearances is that the justices are not ideological. He is protesting too much. Related [Ross Douthat]( has made the conservative case against a super-empowered Supreme Court. Several people have made the case for term limits for the justices, including [Doug Bandow]( of the Cato Institute and [me, in an earlier newsletter](. The scholars [Lori Ringhand and Paul Collins]( have laid out the pros and cons in The Washington Post. And back on the subject of health care, [Paul Krugman]( explains the latest Republican attempt to take away health insurance from a lot of people. ADVERTISEMENT If you enjoy this newsletter, forward it to friends! They can [sign up for themselves here]( — and they don’t need to be a Times subscriber. The newsletter is published every weekday, with help from my colleague Ian Prasad Philbrick. David’s Morning NYT Read [Where’s Your Climate Plan, Mr. McConnell?]( By MICHELLE COTTLE The Senate Republican leader staged a sham vote on a Democratic climate change resolution, embarrassing only himself. The Full Opinion Report [The Patriot’s Guide to Election Fraud]( By FRANK BRUNI Dan McCready was a starry-eyed novice. Then his House race in North Carolina was stolen. [Republicans Really Hate Healthcare]( By PAUL KRUGMAN They’ve gone beyond cynicism to pathology. [Is Trump Good for Trump?]( By THOMAS B. EDSALL In response to his presidency, America has gotten more liberal — despite appearances to the contrary. Will it matter in 2020? [People Actually Like the Green New Deal]( By SEAN MCELWEE Mitch McConnell’s show vote in the Senate on Tuesday rejected the plan, but Republicans may come to regret their mockery. [Why Trump’s New Push to Kill Obamacare Is So Alarming]( By NICHOLAS BAGLEY It’s not just the potential damage to the health care system and the people who depend on it. It’s also the threat, in the administration’s legal position, to the rule of law. [Want to Reduce Opioid Deaths? Get People the Medications They Need]( By THE EDITORIAL BOARD Drugs like buprenorphine could sharply curb the nation’s opioid overdose crisis. But federal laws make it difficult for people who need such medications to get them. [Stop Ignoring Those “Update Your Device” Messages]( By MATT BLAZE Even though the Asus malware attack was spread through software updates, the best way to protect yourself online is to keep your software updated. [How to Win the Fight Over Europe’s ‘Refugee Crisis’]( By JOHN DALHUISEN To beat the far right, the E.U.’s mainstream parties need a credible story — and real solutions. [How to Save the American Racehorse]( By GINA RARICK A string of fatalities underlines the desperate need to change racing’s practices. [Venezuela’s Powerless Revolution]( By FRANCISCO RODRÍGUEZ AND JORGE ALEJANDRO RODRÍGUEZ To end an electricity crisis, the opposition and Maduro’s regime have to agree to put the lives of the people above their political goals. [Do You Speak My Language? You Should]( By BÉNÉDICTE DE MONTLAUR In an increasingly global world, Americans should be adding, not slashing, opportunities for their children to learn another tongue. [Did Xi Jinping Conquer Italy or Just Buy a Lot of Blood Oranges?]( By ILARIA MARIA SALA The government in Rome is a very unreliable partner, even for China. [Can Exxon Mobil Protect Mozambique From Climate Change?]( By LEIGH ELSTON The money could make the country more resilient — if it doesn’t just end up causing more conflict and corruption. [The Debate About the Mueller Report]( Readers continue to speculate about the actual contents of the Mueller report and discuss the legitimacy of the investigation. 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