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Introduction 10

Three Stories about Courts 11
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n this era of intensely polarized politics, three stories about courts 14
Iand judges have emerged. When the US Supreme Court (SCOTUS) 15
upheld most provisions of the Affordable Care Act (ACA, also known 16
as Obamacare) in June 2012, some observers emphasized that a chief jus- 17
tice appointed by Republican president George W. Bush had joined the 18
Court’s four Democratic appointees to uphold the statute, characterizing 19
the decision as a textbook example of neutral judging according to law. 20
Others emphasized that the Court’s four other justices, all Republican 21
appointees, had voted to strike down in its entirety a 900- page statute 22
that represented the signature domestic policy achievement of a sitting 23
Democratic president; these observers fretted about the latest example 24
of partisan justice. And still others emphasized that the ACA’s ultimate 25
fate appeared to hinge less on the justices’ views than on the outcome of 26
the 2012 election, suggesting that the Court’s role was relatively inconse- 27
quential. Each of these stories captures part of what is significant about 28
National Federation of Independent Businesses v. Sebelius (2012)— and 29
about contemporary courts more broadly— but none of them paints the 30
full picture. 31
Consider the first story, told most often by judges themselves. When 32
we ask judges to describe their work, they invariably say that they are 33
doing their utmost to apply the law as written. As John Roberts put it in 34
2005, “judges are like umpires.” Testifying before the Senate Judiciary 35
Committee on his nomination as chief justice of the United States, 36
Roberts insisted that as a judge, his job was simply to call balls and strikes, 37
not to root for either team. Like an umpire, he would not write the rules, 38
but merely apply them. With or without the sports analogy, this story has 39
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