Umpire John Roberts

When you are an umpire and the batter hits a foul ball you are supposed to call it foul. It doesn’t matter if there are two outs in the bottom of the ninth and the home team’s best player is batting and it would be a home run if fair, it is still a foul ball. It also doesn’t matter if you live in that town and people will be happier with you if it’s a home run, it is still foul.Chief Justice John Roberts used the umpire analogy during his confirmation hearing. He said people don’t go to the game to see the umpire. That is true. But they know when the umpire blows a call.

The reaction on both sides of the PPACA ruling is similar to the reaction to a blown call in the Baltimore Orioles vs. New York Yankees playoff game on October 9, 1996. The Yankees were trailing 4-3 in the bottom of the 8th inning. Derek Jeter hit a fly ball to the right field fence. As the Oriole outfielder was waiting for the ball, a young fan named Jeffrey Maier reached out and caught the ball. What should have been an out was called a game-tying home run. The Yankees later won the game.

Maier was feted and cheered throughout the New York area and on national programs originating in New York. It was obvious to everyone they had gotten away with something. Since all the major media were in New York, it looked like everyone was happy.

But when the umpire picked a winner, he also determined a loser. Oriole fans were frustrated and angry because they knew the game was called inaccurately and, therefore, unfairly. The joy of the winners was not as sweet because the call was embarrassing, but the sting of defeat was immeasurably bitterer.

The Federalist Society and many others on the right have been working for years to change the legal and political conversation to restore the idea that the Constitution is both an empowering and a limiting document. After eighty years of expansion of national power, they were saying, “Enough!” By following the rules of the game and working to elect Presidents who would name Federalist Society members, including Roberts, to the court, they hoped to restore the idea that in our Federal system the powers of the national government are limited.

In baseball terminology, the conservatives believed the foul lines had been totally erased and had become meaningless. After the oral arguments, conservatives had reason to believe the foul lines were coming back to the game. The Commerce clause might have limits.

Chief Justice Roberts wrote that under the Commerce Clause, the ACA is, indeed, a foul ball. But, had he left it there, he would have offended those whose opinions apparently matter to him. He proceeded to openly and publicly move the foul pole. He agrees the Commerce Clause has limits, but he now says the taxing authority does not.

The rewards to him are immediate and obvious. He takes the Jeffrey Maier tour and receives all the praise. He is both the kid who caught the ball and the wise umpire who redefined the game to get the desired result. The accolades are coming in from “all the people who matter.”

 We are told he bolstered the institutional integrity of the Court by ensuring the decision was not seen as “political.” But, as Shakespeare said, “There’s the rub!” Who had to be satisfied the results were not political? By deciding as he did, Justice Roberts made it clear that the opinions of some people mattered a great deal. But, when you tell the world whose approval you seek, you tell the rest of the world their opinions don’t matter.

Many people worked to put limits on the Commerce Clause and felt the highly unpopular PPACA was the perfect scenario. They believed had victory in hand until the umpire moved the pole again. Some are holding out hope that he pulled a magic act to allow limits in the future. That may be true unless the opinion of “those who matter” continues to be the determinant for him. If so, the foul pole will move again.

Any sports fan whose team has been hurt by a bad call never again fully trusts the officials. For those who worked to build a court majority to limit the power of the national government the result is painful and will not soon be forgotten. Their response to Justice Roberts is familiar to any sports fan, “We wuz robbed!”