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.
We tend to assume that every time a public official changes his mind, it’s because he never really believed his original talking points. Either that or his earlier views hold firm, but he has opted to play-act for political advantage. (Romney has criticized Roberts’ decision. One would think that, if anyone had sympathy for a public official who changed his mind, it would be the erstwhile architect of Massachusetts’ health care mandate.) Take the reaction to President Obama’s endorsement of gay marriage. Many pundits found it almost impossible to imagine that POTUS’ stance had truly, organically evolved over the years—even if those years were notable for bringing homosexuality more into the mainstream.
This distrust of ideological adaptiveness wasn’t always the norm. In fact, a healthy appreciation for mental flexibility dates back to the fifth century B.C., when the historian Thucydides, setting down a funeral oration by Athenian statesman Pericles, wrote that the city-state profited from its citizens’ ability to adjust their ideas to the times. “I say that Athens is the school of Hellas, and that the individual Athenian in his own person seems to have the power of adapting himself to the most varied forms of action with the utmost versatility and grace,” Thucydides reports that Pericles claimed. Rather than iron-clad convictions, Athenians cultivated open minds.
And successful politicians have often switched paths mid-career. The young Ronald Reagan identified as a liberal Democrat, not to mention a Hollywood heartthrob. Tony Blair went through a Tory phase before landing solidly in the Labour camp. Sens. Arlen Specter and Joe Lieberman strayed from the Republican and Democratic parties, respectively, to pursue more individualized platforms.
Meanwhile, in 2012, “wobbly” is the new meme that’s emerged to indict Roberts for thinking one thing and then, a little later and upon more reflection, thinking another. The chief justice has wandered into the territory of the American political bogeyman—that spineless (often effete or out-of-touch) flibbertigibbet who doesn’t stand for anything. (It’s no coincidence that, faced with the prospect of flip-flopper Kerry in 2004, the country re-elected a man known for “staying the course.”)
One problem is that wobbly, which suggests “small uncontrollable bodily movements,” banishes the possibility that changing one’s mind can be moral, tactical—even noble. It implies some sort of built-in deficiency that prevents one from standing up straight. But I prefer to think of the wobbling of a compass needle just before it locks into the right position. It would be a shame if the flip-flopping bugbear loomed so large over American politics that our public officials didn’t feel safe revising their old opinions into even better ones.
Because, if Roberts did change his mind, so what? Why shouldn’t he be open to persuasion? Why shouldn’t a Supreme Court justice consider an issue from all 360 degrees, confident in his life tenure and his unaccountability to the world outside the courtroom? As foolish as it is to encourage judges to hide from potentially convincing arguments in the papers, on the news, in the mouths of friends or foes, it’s even more insulting to imply that they can’t withstand the gales of public opinion. “Give [Roberts] some credit for knowing his own mind,” chided McGough in May. And, as may be the case, for changing it.
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