What just happened to conservative Chief Shapeshifter, I mean Justice, John Roberts, author of yesterday’s blockbuster majority opinion upholding Obamacare?
Was he kidnapped by aliens?
Is he the conservative Benedict Arnold of the 21st century?
Or was it a political tour de force designed to strengthen both the independence of the judiciary and limited government? That’s the theory being discussed on some of the country’s top legal blogs today.
David Bernstein, Ed Whelan and Deborah Pearlstein have all suggested, based on several passages in the dissent, that Roberts originally voted to strike down the individual mandate, but later switched sides.
Here’s Bernstein at the Volokh Conspiracy:
Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill.
Courts, even the High Court, certainly aren’t immune to political pressure. In 1937, for example, when FDR threatened to pack the Court to get it to start upholding his New Deal programs, conservative Justice Owen Roberts suddenly switched sides with a vote to uphold FDR’s minimum wage law. It was known as the “switch in time that saved nine.”
But if that’s what happened yesterday, it’s not all that happened.
During the New Deal, the Court tore a hole in the Constitution’s Commerce Clause big enough to drive a phalanx of semis through. And ever since then, successive Courts have rolled over and played dead, giving Congress almost absolute power to pass whatever legislation it chooses, even if it’s only distantly and barely related to interstate commerce.
Yesterday Roberts said no. “The Commerce Clause,” the Chief Justice wrote:
is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.
The Court also interpreted the Taxing and Spending Clause very broadly in the 20th century. But not Roberts. David Kopel writes on SCOTUSblog:
“The States are separate and independent sovereigns.” So affirms the Court today by a 7-2 vote, in the most important decision ever defining the limits of Congress’s power under the Spending Clause.
While the constitutional implications are tremendous, the practical effect on state budgets may be even greater. Today (and from now on!), states do not need to provide Medicaid to able-bodied childless adults. Likewise, states today have discretion about whether to provide Medicaid to middle-class parents. Undoubtedly, some states will choose to participate in the ACA’s massive expansion of medical welfare, but fiscally responsible states now have the choice not to.
Finally, Roberts’ opinion also reined in the broad power previous Courts have given Congress under the Necessary and Proper Clause. Roberts wrote:
Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.
But then, after three separate and vigorous push backs to the current idea that Congress has virtually unlimited legislative authority, Roberts turns around and upholds the individual mandate.
What’s up with that?
Curiously, he upholds it in the absolutely weakest way possible: because it’s a tax, he says, and Congress has the power to collect taxes.
- Every single lower court that heard this argument rejected it.
- The President rejected it, saying, in 2009:
for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.
- Even the law itself rejects it, calling the fine a “penalty,” not a tax.
So what are we looking at? A decision that makes a sharp, cogent and multi-pronged attack on Congressional overstepping, then decides the case on the weakest (read “most easily overruled”) grounds possible. The dissent is way stronger than the majority opinion. And the Court has a history, with weakly reasoned majority opinions and strongly reasoned dissents, of going back later and agreeing with the dissenters.
Also, and critically, from Roberts’ perspective, we’re looking at a Court with increased authority and prestige. Healthcare isn’t the only landmark legislation coming the Court’s way by any means, and a chief justice has to take the long view. Next term they’ll probably be ruling on the Voting Rights Act and affirmative action, among other things. And Obama has already made not-very-veiled threats against the Court.
If Roberts had sided with his conservative brethren and struck down Obamacare, it would have been the first time in almost 80 years that a Court had overturned a president’s centerpiece legislation. And recent polls have showed that 75% of us now think (or did until yesterday) that the Court’s votes are politically motivated. A rejection of Obamacare would surely have upped that number. And that’s not a position from which a Court could survive an attack by a strong President or Congress.
So instead, in a single decision, Roberts positioned the Court as independent, while simultaneously limiting Congress’s legislative power.
And the cost? Not necessarily much, if conservatives get off their backsides and work to elect a conservative Congress and President in November. Like Monday’s Arizona decision, yesterday’s ruling explicitly puts the problem squarely back in Congress’s lap–and ours.
“We do not consider whether the act embodies sound policies,” wrote Roberts:
That judgment is entrusted to the nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.
And he points out rather pointedly that those leaders:
can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
He closes the majority decision with these words:
The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.
If that’s not an invitation to the people, I don’t know what it is.
Kopel compares yesterday’s decision to the iconic Marbury v. Madison. There the Court’s greatest Chief Justice, John Marshall, under intense pressure from President Thomas Jefferson, gave the President the result he wanted in the case, but strengthened the power of the federal courts to limit the power of that President and Congress, and every one since. If this Court, in subsequent decisions, takes the view regarding the Commerce, the Taxing and Spending, and the Necessary and Proper Clauses laid down yesterday by John Roberts, it might well be just that.