For decades now, conservative justices have been waging a long-running battle against affirmative action, while pointedly ignoring that the framers of the 14th Amendment were the original proponents of affirmative action, enacting numerous race-conscious measures to fulfill the Constitution’s promise of equality. In writing the 14th Amendment, the framers recognized that race-conscious measures were sometimes necessary to help realize the constitutional guarantee of the equal protection of the laws.

In short, Roberts’ decision cannot fairly be faulted for misreading the ACA, nor flouting precedent, and certainly not for ignoring conservative principle. That so many on the Right have brutally turned against him shows that the only end-point they cared about was outright cancellation of Barack Obama’s signature accomplishment in an election year. It is more surprising that so many on the Left have bought into the notion that the decision was a spiffed-up political fix. 

There are serious, legitimate critiques to be made if Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy, in particular, join a ruling that strikes down the ACA.

Republicans clearly have no scruples about wrapping themselves in the mantle of the Constitution and the framers at every opportunity. Progressives must correct this chronic asymmetry if they harbor any hopes of saving contested legislative reforms, including landmark laws already on the books, from hostile judges and justices.  Smart, well-founded, compelling legal and constitutional arguments must become a central part of progressives’ repertoire, just as they are for the Right.