In the wake of the Supreme Court’s decision to uphold the Affordable Care Act, pundits are scrambling to explain why Chief Justice John Roberts broke rank with his fellow conservatives in order to, well—it’s complicated. Was he attempting to preserve the integrity and reputation of the court? Was he somehow bullied or intimidated by liberals, the president, or powerful Democratic interests? Was he—perish the thought—attempting to apply the law to the best of his ability?
Fueling the speculation over the court’s unexpected decision was CBS’ Jan Crawford’s report last week that Roberts may have been against the ACA before he was for it—that he likely switched his vote at the last minute to rescue, rather than strike down, the individual mandate, which stipulates that all Americans buy health insurance or pay a penalty/tax/what-will-you. Roberts, according to an anonymous leak, was poised to side with the four conservative justices when he turned “wobbly.” Weeks earlier, at a reunion event at Princeton, Ramesh Ponnuru, perhaps referring to the same source, echoed: “There seem to have been some second thoughts. Not on the part of Justice Kennedy, but on the part of Chief Justice Roberts, who seems to be going a little bit wobbly.”
Since then, “wobbly” has fastened itself to the chief justice like a barnacle of GOP resentment. “Wobbly Roberts. It rolls right off the tongue,” wrote blogger Pawpaw: “The simple Google string, John Roberts Wobbly, returns 163,000 results, and this is just Monday morning. That's your legacy, sir.” “Roberts Wobbles and Falls Down,” taunted another site. Even the mainstream media has picked up the epithet: The Washington Post’s Charles Lane refers ironically to “that wobbly John Roberts,” and the word also surfaces, with respect to Roberts, in the Los Angeles Times, the New York Post, the New York Times, and others.
But the “wobbly” paper trail stretches back at least to May, when Michael McGough wrote a story entitled “Conservatives worry Roberts will ‘go wobbly’ on ‘Obamacare.’ ” In the piece, published as wonks across the country speculated about the possible fallout from the Supreme Court oral arguments, McGough challenged a notion put forth by Kathleen Parker, George Will, and the Wall Street Journal’s opinion editors—that the left was strong-arming the chief justice by threatening to tar him as a judicial activist if he tore down Obama’s signature law. (Parker and company were responding in part to a Jeffrey Rosen article in The New Republic that suggested a 5-4 vote against the ACA would enter history books as “an irredeemable failure.” And they cited similar “unsubtle intimations” from Sen. Patrick Leahy on the Senate floor.)
What is this “wobbly?” It seems part of a narrative produced by conservatives and decried by liberals, one in which the upright but susceptible Roberts succumbs to pressure from the left in a moment of tragic weakness. That tale, meanwhile, is a consolation prize for folks that fervently hoped—even expected—the Supreme Court to fragment along party lines and deliver Republicans the victory. Conveniently, it casts Democrats as a bunch of unprincipled thugs defiling our government systems.
In another sense, “wobbly” is our signal that Roberts, politician or no, committed the cardinal sin of politics last week: He changed his mind. Before wobbly we had “Etch-a-Sketch” and before that we had “flip-flopper.” They carry slightly different connotations, but each boils down to the same pith. Once you’re elected or appointed to public office, your opinions are no longer your own. They become the property of your political party; altering them without permission is the worst form of betrayal; the free to-and-fro of an agile, independent intellect is suddenly a liability.