During the mid-1930s, the phrase ’four horsemen’ was employed to describe Pierce Butler, Willis Van Devanter, George Sutherland, and James McReynolds, four justices of the Supreme Court who consistently opposed New Deal legislation. Originally employed by critics of those justices, the phrase evoked the legendary Four Horsemen of the Apocalypse.
Justice Owen Josephus Roberts had joined a conservative depression-era Court identified with entrepreneurial liberty and skeptical of government regulation of business. Serving on a Court now deeply divided by new FDR appointments – notably Charles Evans Hughes and Benjamin Cardozo – Owen Roberts’ vote was pivotal in the struggle between the conservative majority and FDR. As conservative opposition to New Deal legislation intensified, the Court’s attitude towards federal economic legislation hardened, and Justice Owens increasingly joined the persistent conservative majority.
The Court’s successfulopposition to New Deal legislation led to the 1937 battle over Roosevelt’s court-packing plan. FDR proposed to appoint five additional members to the nine-member Court – all of whom would have been Democrats. In response to this threat Roberts apparently softened his attitude towards the New Deal.
In 1937, in a ‘switch in time that saved nine’, Justice Owens joined a new majority in upholding a state minimum wage law in West Coast Hotel v. Parrish (1937). FDR’s court-packing plan died in the U.S. Senate, but Owen Roberts’ switch, followed by conservative retirements and new FDR appointments to the Court, ushered in half a century of Supreme Court deference to progressive legislation.
On June 28, 2012, Chief Justice Roberts – in a second dramatic switch thay may have saved yet another nine, led a five to four majority in ruling that the individual insurance mandate – the lynchpin of Obamacare – was constitutional, albeit under the Tax Clause rather than the Commerce Clause of the Constitution. If Chief Justice Roberts sustains this pivotal shift from a conservative to a progressive agenda, the United States may be on the edge of yet another era of court deference to progressive legislation.
President Obama can no longer campaign on a record of not imposing federal tax increases on poor Americans. The insurance mandate imposes perhaps the highest ever tax increase on the group of Americans who choose not to purchase health insurance from 2014 onwards. And most of these Americans will be relatively poor. No doubt the master-spinner will spin this tax in such a way as to avoid vote losses among the affected group.
With Obamacare ruled constitutional – with minor exceptions regarding the imposition of Medicaid expansion on the states – the only way to avoid it now is outright repeal. That sets a very high bar, requiring a House majority, a Senate filibuster-proof majority, and a presidential signature. Unless November 2012 provides landslide victories for the Republican Party, this battle is now over, and should not divert attention from the major economic reforms required to vault the United States back onto a high growth, high-employment trend line.
Of course, the economic drag implicit in Obamacare is a major additional obstacle imposed on the nation by the second Justice Roberts and his four progressive colleagues. Roberts, I suspect, is a name extremely unlikely to find its way into the Hall of Fame occupied by the nation’s greatest justices.