Better in their words…

You can tell the Supreme Court is getting closer to its historic ObamaCare ruling because the left is making one last attempt to intimidate the Justices. The latest effort includes taunting Chief Justice John Roberts that if the Court overturns any of the law, he’ll forever be defined as a partisan “activist.”

Senate Judiciary Chairman Pat Leahy recently took the extraordinary step of publicly lobbying the Chief Justice after oral argument but before its ruling. “I trust that he will be a Chief Justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch,” the Democrat declared on the Senate floor. “The conservative activism of recent years has not been good for the Court.”

He added that, “Given the ideological challenge to the Affordable Care Act and the extensive, supportive precedent, it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.”

The elite liberal press has followed with pointed warnings that Mr. Roberts has a choice—either uphold ObamaCare, or be portrayed a radical who wants to repeal the New Deal and a century of precedent. This attack is itself clearly partisan, but it’s worth rehearsing the arguments to show how truly flawed they are.

The first fallacy is defining judicial activism as overturning a Congressional law. Since Marbury v. Madison established judicial review in 1803, the High Court has overturned hundreds of laws in part or whole. The real measure of activism is whether the Court’s reasoning is rooted in Constitutional principle. If it is, the Court is not activist but is adhering to the highest legal principles.

Regarding the Affordable Care Act, we’d argue that upholding the individual mandate to buy health insurance requires far more judicial activism. That’s because if the Court finds this federal mandate to be Constitutional, it will have no principle on which to limit future purchase mandates.

Once health insurance can be mandated, Congress will inevitably find that other products or services are equally essential to national well-being. Future Courts will either have to find all such purchase mandates to be legal, in which case there is no limiting principle, or they will have to pick and choose, which means an endless exercise in policy-making.

Far better for judicial modesty—and the reputation of the Court—to draw the line that the Commerce Clause forbids Congress from mandating that individuals engage in commerce because such police powers are reserved for the states. This is the truly restrained judicial position.

The most dishonest argument is the liberal media chant that overturning the law means overturning the New Deal era’s Commerce Clause precedents. This is propaganda. None of the plaintiffs advocated that any precedents be overturned, even though in our view some of those cases deserve to be overturned. Paul Clement and Michael Carvin, who argued for the plaintiffs before the Court, explicitly denied any such desire.

The left is playing up the libertarian legal views of academic Randy Barnett in particular, to suggest that he’s a pied piper for the conservative Justices. We often agree with Mr. Barnett, who has written for these pages, but on ObamaCare his influence has been overstated. Lawyers David Rivkin and Lee Casey were far more consequential in developing the legal and Constitutional case.

As recently as the gun rights case McDonald v. Chicago in 2010, a conservative majority ignored Mr. Barnett’s pleas to revive the long-dormant Privileges and Immunities Clause. Justice Antonin Scalia quipped during oral argument that this view was “the darling of the professoriate,” and libertarian legal activists denounced him for it. But in the Court’s 5-4 ruling, Justice Samuel Alito employed the conventional legal analysis known as substantive due process. So much for the primrose path to the 19th century.

The truth is that shouts of a “radical” Court are heard every time the Justices break with liberal orthodoxy, however modestly. The same journalists now warning about a radical states-rights agenda rang the same alarms in 1995 after the Rehnquist Court said Congress couldn’t use the Commerce Clause to regulate guns near schools in Lopez.

Far from beginning a radical march to the right, a 6-3 majority of the Court subsequently said Congress can regulate the growth of marijuana for personal use in Gonzales v. Raich in 2005. We disagreed with that ruling, but liberals ignore it because it doesn’t fit their current political narrative that Chief Justice Roberts is Roger Taney with a better haircut.

We doubt the High Court will be intimidated by any of this, and the truth is that no Justice would be worthy to sit on the Court if he is. As Chief Justice Roberts said at his confirmation hearing, a judge should be a neutral umpire who calls legal balls and strikes fairly as he sees them. The Court’s reputation will be tarnished if it bows to the political distemper of the moment, not if it follows the Constitution.

A version of this article appeared May 22, 2012, on page A16 in the U.S. edition of The Wall Street Journal, with the headline: Targeting John Roberts.

Review & Outlook: Targeting John Roberts – WSJ.com.