When I served on Maine’s District Court, a superior court judge suggested I “hold my nose” occasionally when imposing sentences, replacing firmness with lenience. The public’s perception of the court would, thereby, gain evenhandedness.

Recall of that suggestion put me to wondering if Chief Justice John Roberts held his nose when he broke with other conservative Supreme Court justices and voted support for the Affordable Care Act, also called Obamacare. Commentary has it that Roberts’ “improbable help” to four liberal judges, by joining forces, derived from his concern the court not appear partisan in the outcome, something the court was charged with in its decision of the presidential election of 2000.

The dissenting justices on Obamacare tagged Roberts with “judicial activism” when he found the law valid on the basis it was a tax. Roberts found a tax no one else saw; a tax Congress never intended to enact, and enacted by irregular process; and a tax President Barack Obama said, repeatedly and heatedly, didn’t exist.

Should court conclusions ever depend on how they make courts look? Isn’t Lady Justice blindfolded while holding even scales?

Judges wear black robes, tracing back to when they first donned them to mourn Queen Anne’s death in 1714. Given the direction of the decision in Obamacare, the grim color of the judges’ robes is fitting.

John Benoit


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