Hail To The Chief Justice?

DonkeyHotey

Let's not get carried away by the fact that Chief Justice Roberts voted with the so-called liberal-moderate block to uphold the Affordable Care Act.  Let's not forget, as Ethan Bronner of the New York Times writes, that "in the past, especially on campaign finance law but also on other socially sensitive issues like abortion and affirmative action, Chief Justice Roberts has not shied away from leading a conservative redraft of previously established law, causing some to accuse him of judicial activism."

But with the reputation, perhaps legitimacy, of the Supreme Court at stake, Roberts decided to find a way to validate the Act.

As Steven Teles predicted, Roberts did not want "a direct confrontation with the entire Democratic Party. Striking down the substance of the ACA would have created such a confrontation, and put the Supreme Court at the center of the next election. I don’t think Roberts had a stomach for that."

Teles uses a baseball metaphor to demonstrate the difference between Roberts' approach and that of his fellow conservatives on the bench:

The best way to understand the difference between Roberts and the dissenters is to think of two pitchers who are throwing to a batter who is crowding the plate. The first pitcher throws at the batter’s head, while the second brushes him back. At least in this decision, Roberts decided to be that second kind of pitcher. Roberts wanted to send a signal to the other branches that there are limits on government, and the ACA was really crowding the plate. But he didn’t want to hit the pitcher and invalidate the whole law. So declaring that the mandate violates the Congress’ power under the commerce clause but upholding it as a tax does what Roberts wanted to do: get Congress to pay closer attention to constitutional norms while not precipitating a bench clearing brawl. 

I'm not sure I buy Teles' overarching point (and that of others, such as Laurence Tribe) in the wake of this ruling that Roberts is not really a radical ideologue.  As Ed Kilgore observes, "Roberts exercised 'judicial restraint;' at the same time, however, he managed to deliver not only his 'brush-back pitch' but a nice, easy talking point about ACA relying on a 'tax.'"

And it is unrealistic to think that Roberts has magically undergone some kind of transformation.  As law professor Adam Winkler points out, the Roberts Court has hardly been known before today for its judicial restraint:

Since John Roberts became Chief Justice in 2005, the Court has issued one landmark ruling after another. The Roberts Court gave us Citizens United, which struck down longstanding limits on corporate political spending. This Court also allowed new restrictions on women's right to choose; became the first Supreme Court in American history to strike down a gun control law as a violation of the Second Amendment; effectively outlawed voluntary efforts by public schools to racially integrate; and curtailed the reach of environmental protections.

In many of these decisions, the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old. Prior to Citizens United, the Supreme Court had explicitly held in two cases that corporate political expenditures could be limited -- the most recent of which was handed down in 2003. Six years before the Roberts Court upheld the federal ban on "partial birth" abortion, the Rehnquist Court, which wasn't known for its liberal leanings, had overturned a nearly identical law.

Significantly, although Roberts agreed with the four conservative justices that the individual mandate was not a regulation of interstate commerce, he ultimately voted to uphold the constitutionality of the mandate by characterizing it as a tax.  While his vote saved the Act, Justice Ginsburg cautioned that Roberts' view comprised a "novel constraint on Congress’ commerce power." 

In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to The Chief Justice, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

As Amy Davidson notes, “stunningly retrogressive” is not the phrase most people are using this morning to describe Roberts’s opinion; he is being celebrated as a moderate, called a disappointment to conservatives. But Ginsburg’s caution is worth watching. (See Professor Tobias Wolff's comments on the extraordinarily disruptive potential of Roberts' reasoning.)

But, as Winkler notes, "with this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there."

Chief Justice Roberts undoubtedly had the Court's institutional legitimacy and his own reputation in mind when he voted to uphold the Affordable Care Act.  And, more disturbingly, as Winkler predicts:

Roberts may have voted to save healthcare because he wants to preserve the Court's capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America's commitment to civil rights for over 40 years.

It is therefore ridiculous to analyze Roberts' legacy based on this one ruling.  As Winkler concludes, "The Roberts Court has only just begun."