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Tom Rosshirt
Tom Rosshirt
27 Apr 2013
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The Wisdom of Doubt

Comment

The chief justice of the United States and I attended the same high school.

I arrived on campus two years after he had left. He was a legend by then, already in his last year at Harvard College, where he graduated summa cum laude in three years.

People still talked about him. Roberts' math teacher told us he would ping pebbles off Roberts' dorm window during study hall just to see whether he could get him to look up from his books. He never did.

At his commencement, prizes were given for excellence in each discipline. Roberts won them all, prompting a teacher to say that his final prize should have been a wheelbarrow.

When Roberts was nominated for the Supreme Court, there was pride in him among his fellow alums, even among those who didn't go to school with him or share his politics. There was no feeling that Roberts got lucky. It was more a sense that his destiny had been fulfilled.

I met Roberts at the Supreme Court in 2008 to interview him for the alumni magazine. He was gracious, humorous and self-deprecating — telling a story about a wrestling match that he had lost rather than talking about the many he had won.

He showed the personality that prompted David Boies, who represented Al Gore in Bush v. Gore, to say after the Roberts nomination in 2005: "He's a brilliant lawyer, a brilliant judge. ... Everybody who knows him likes him."

I saw Roberts at an alumni reception March 30, at the close of the week that included oral arguments on the Affordable Care Act. I asked him whether he'd had a "busy week," knowing he would courteously deflect the query.

I did reflect, as I watched him move from group to group, that he was one of the few people in the country who make decisions that affect millions. If I could wish for a set of qualities in such people, I would not wish first for brilliance or likability; I would wish for a strong capacity for self-doubt.

The political culture in this country sees doubt as a sign of weakness. Actually, it's the opposite. Doubt is painful emotional state, and we've seen what happens when leaders can't bear that pain. They suppress their doubt by clinging to like-minded colleagues, ignoring evidence and making bad decisions.

The Iraq War came out of this.

Six months before the invasion of Iraq, Vice President Dick Cheney said, "There is no doubt that Saddam Hussein now has weapons of mass destruction."

Two days before the invasion of Iraq, President Bush said, "Intelligence ... leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised."

Ten months after the invasion of Iraq, after the top U.S.

arms inspector said he couldn't find chemical or biological weapons, Bush said, "There is no doubt in my mind that Saddam Hussein was a gathering threat to America."

Actually, there was plenty of doubt in Bush's mind — but not at any level he was willing to explore.

Voltaire wrote, "Doubt is not a pleasant condition, but certainty is an absurd one."

I hope Chief Justice Roberts is wrestling with doubt — doubt about his reading of the commerce clause, about the role of Congress and the high court, and especially about the impact on the reputation of the court if it overturns the Affordable Care Act on a 5-4 vote.

Such a decision likely would inflame the political climate in the middle of a presidential campaign — an unfortunate effect of applying a Constitution established to "insure domestic Tranquility."

Of course, if he is convinced that the law is unconstitutional, then he is obliged to vote to overturn. But if the law is clearly unconstitutional — and there can be no other standard for overturning the law — then it should be clear to liberals and conservatives alike.

Yet it's not even clear to conservatives.

Ronald Reagan appointee and renowned conservative jurist Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit upheld the ACA in November, writing, "The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems."

Former Reagan solicitor general Charles Fried told the Los Angeles Times that a vote to overturn the ACA "would be more problematic than Bush v. Gore. ... It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before."

In 1787, when Benjamin Franklin made his impassioned plea for unanimity at the Constitutional Convention in Philadelphia, he said, "The older I grow the more apt I am to doubt my own judgment and pay more respect to the judgment of others."

The more respect Roberts pays to the judgment of others the more support he will seek before overturning a major federal law — something that has not been done in nearly 80 years.

If Congress must achieve a two-thirds vote in both houses to override the president, then it seems reasonable that the Supreme Court should have a two-thirds vote to overturn the president, the Senate and the House. This is not required, of course. But it might be a prudent standard for a historic decision at a sensitive time in a divided country. If instead the court were to overturn it 5-4, a substantial share of the country would see it as a party-line vote of an elite, unelected legislature.

I doubt that is what John Roberts wants or the country needs.

Tom Rosshirt was a national security speechwriter for President Bill Clinton and a foreign affairs spokesman for Vice President Al Gore. Email him at tomrosshirt@gmail.com. To find out more about Tom Rosshirt and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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