The New Republic

In the current issue of TNR, I suggested that the health care decision represents a “moment of truth” for John Roberts because, if the Supreme Court overturns the Affordable Care Act by a 5-4 vote, Roberts’s "stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.” This observation was intended as nothing more than a statement of the obvious. It has nonetheless provoked an outraged reaction from conservative commentators. “The president and his surrogates mount an aggressive campaign to intimidate the chief justice of the United States, implying ruin and ridicule should he fail to vote in a pivotal case according to the ruling political party’s wishes,” writes Kathleen Parker in the Washington Post. “It is cheeky of Rosen, a liberal, to lecture Roberts about jurisprudential conservatism, which Rosen says requires 'restraint,' meaning deference to congressional liberalism,” writes George F. Will. “Such clumsy attempts to bend the chief justice are apt to reveal his spine of steel.” 

The idea that I was trying to “intimidate” or “bend” the Chief Justice came as a surprise to me. The justices have already voted in the health care case and are hardly influenced, in any event, by legal punditry. On the contrary, I suggested that this is a moment of truth for Chief Justice Roberts because I’ve been a staunch supporter of the vision of bipartisanship that he articulated when he became Chief Justice, and have continued to defend him during the past six years when others have denounced him for failing to live up to the standards he set for himself.

IN 2006, AT THE END of his first term as Chief, Roberts told me in an interview that he thought it was bad for the Court and the country when the justices handed down decisions by ideologically polarized, 5-4 votes. Roberts said he would make it his mission, as Chief Justice, to persuade his colleagues to avoid 5-4 rulings on constitutional grounds and instead to converge around narrow, unanimous opinions that both liberals and conservatives could embrace. “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions,” Roberts told me. “I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution. And to the extent that my colleagues share that concern, we should be able to make some progress.”  

At the beginning of his tenure, Roberts viewed the chance to lead the Court away from 5-4 decisions as a “special opportunity” in a polarized age. “Politics are closely divided. The same with the Congress. There ought to be some sense of some stability if the government is not going to polarize completely. It’s a high priority to keep any kind of partisan divide out of the judiciary as well.” He embraced as his model for promoting unanimity his greatest predecessor, John Marshall. “Part of what inspires me is the fact that Marshall was able to do it,” Roberts said. “He could easily have got on the Court and said, 'I’m the last hope of the Federalists; we’re out of Congress; we’re out of the White House; and I’m going to pursue that agenda here.' And he would have not only damaged the Court but could have smothered it in the cradle.” Roberts recognized the high bar he was setting for himself in trying to promote consensus and acknowledged that he might not succeed in avoiding 5-4 divisions. But he emphasized that it would be bad for the Court if he failed. Trying to achieve unanimity is “worth trying, and maybe it’s worth trying for a little while, and if it becomes hopeless, then you can go back and not view that as a major effort, and we’ll go back to having [5-4 opinions].”  

I was impressed with Roberts’s aspirations toward unanimity. That’s why I’ve been giving him the benefit of the doubt for the past six years. But Roberts has already presided over a Court that has struck down campaign finance reform and affirmative action by bitterly divided 5-4 votes. If the Court follows these decisions with a 5-4 opinion striking down health care reform, it’s hard to imagine how anyone, including Roberts himself, could conclude that his aspiration of promoting consensus have been anything other than a failure. When he spoke, after all, he was fully aware of the difficulty of the task any Chief Justice faces in trying to encourage unanimity. “It’s sobering to think of the seventeen Chief Justices; certainly a solid majority of them have to be characterized as failures,” he said. But Roberts left no doubt that he would view 5-4 decisions that led the public to view the rule of law in partisan terms as a failure. “I think it’s bad long term if people identify the rule of law with how individual justices vote,” he said. Based on this concern, he must have been distressed by a Washington Post poll showing that half the public expects the justices to rule based on their “partisan political views” while 40 percent expect the decision to be based primarily “on the basis of the law.” 

Of course, if the Court strikes down health care reform by a 5-4 vote, the blame shouldn’t be placed on Roberts alone: As he acknowledged in our interview, he could only succeed in promoting unanimity “to the extent that my colleagues share that concern.” He suggested that some of his colleagues were likely to be more sympathetic to the goal of narrow unanimous opinions than others, a prediction supported by a recent account by Jeffrey Toobin, which suggests that Roberts originally wanted to decide the Citizens United case more narrowly, but that Anthony Kennedy insisted on a broader opinion. There will be time enough after the decision comes down to explore the reasons Roberts succeeded or failed in achieving the task that he set for himself, and the degree to which his liberal as well as conservative colleagues shared or rejected his vision. But to conclude that a 5-4 health care decision would represent a decisive failure for Roberts’s vision of promoting consensus seems not “cheeky,” as George Will suggests, but self-evident.

Until recently, George F. Will embraced the traditional, bipartisan understanding of judicial restraint, which conservatives and liberals alike used to define as deference to the legislative branches. That is the vision of bipartisan restraint that The New Republic has defended ever since it was founded in the Progressive era and that I have championed as legal affairs editor for the past twenty years. In these pages, I have repeatedly criticized liberal decisions, such as Roe v. Wade and the Massachusetts gay marriage case, and conservative decisions, such as Bush v. Gore and the affirmative action cases, for short-circuiting political debates in the name of novel constitutional doctrines whose connection to constitutional text and history is hard to discern.

Having embraced judicial activism on the right in a turn that some of his fellow conservatives find unexpected, Will accuses me of embracing activism on the left. “Rosen says … “restraint” [means] deference to congressional liberalism,” Will argues. On the contrary. I say restraint requires deference to all laws passed by Congress and the states, regardless of whether they’re favored by liberals or conservatives, unless they violate principles that can be so clearly located in constitutional text and history that people of all political persuasions can readily accept them. Although Will has abandoned his former allegiance to bipartisan judicial deference, I have continued to criticize judicial activism whether practiced by the left or the right and have applauded conservatives like Judge J. Harvie Wilkinson who do the same. (Will, Wilkinson, Randy Barnett and I debated these different visions of restraint at a recent, and convivial, dinner.)

In my piece, I also suggested that “In addition to deciding what kind of chief justice he wants to be, [Roberts] has to decide what kind of legal conservatism he wants to embrace.” I noted that although the challengers to the health care law, led by my friend Randy Barnett, were portraying their constitutional arguments as narrow and modest, in fact, their ambition was far more radical: to strike down regulations at the heart of the post New Deal regulatory state.

This is Randy Barnett’s response to this argument:

Nowhere did the challengers to the ACA ever base their claim on “conservative economic doctrines.”  No. Where.  Our case has always been simply that this claim of federal power exceeds any that has ever previously been authorized by the Supreme Court, and that it is an uncabined, unnecessary and dangerous power to recognize for the first time.

Still, this is very clever advocacy of a radical result under the guise of judicial conservatism. For, if the Court were to take Rosen’s advice, the Roberts Court will have adopted the radical position that law professors have long desired, but that even the New Deal Court never announced: Unless the Congress violates an express prohibition in the Constitution, there are no judicially-enforceable limits on the Commerce Power of Congress. Indeed, we know from legal historian Barry Cushman that some New Deal justices privately considered and rejected adopting this approach in Wickard v. Filburn.

Barnett’s suggestion that he and the other challengers of the law are not seeking a radical change in the law is amusing. In 2005, after all, Barnett asked the Supreme Court to overturn the 1942 Wickard v. Fillburn case, which allowed Congress to regulate a farmer who was growing wheat in his personal use. But in Gonzalez v. Raich, the Supreme Court, in a 6-3 opinion written by Justice Antonin Scalia, rejected Barnett’s invitation to return to a narrow, pre-New Deal vision of Congress’s commerce power. (Only Justice Clarence Thomas signaled a willingness to overturn Wickard.) Now Barnett implies that he is asking the Supreme Court to do no more than respect the previous precedents that he has devoted his career to trying to overturn.

In the course of soft-peddling his arguments, Barnett mischaracterizes mine. I never claimed that “unless the Congress violates an express prohibition in the Constitution, there are no judicially-enforceable limits on the Commerce Power of Congress.” On the contrary, I have cited briefs by liberal and conservative law professors arguing that Congress cannot use its commerce power to regulate activity that has no substantial effects on interstate commerce and where there are no collective action problems that make it impossible for the states to act on their own. By accepting this argument, rooted in constitutional text and history, I said the conservative justices could remain true to their constitutional principles without endorsing unlimited Congressional power on the one hand or the free-floating economic liberty championed by Barnett and Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit on the other. But instead of engaging this argument, Barnett changes the subject and says I am calling on the Court to yield to an “overtly political media onslaught” that “would fatally undermine the independence of the Supreme Court.”

John Roberts’s choice in the health care case has nothing to do with judicial independence and everything to do with what kind of judicial conservatism he wants to embrace: that of activist libertarians such as Randy Barnett and Janice Rogers Brown or that of traditional conservatives, such as Lawrence Silberman and Jeffrey Sutton, who have rejected Barnett’s arguments and voted to uphold the health care law. Barnett’s response is that, despite having staked his career on the need to overturn the New Deal, he is not, in the health care case, arguing for overturning the New Deal, but is simply making a narrow, modest argument for applying the existing precedents that he has devoted his career to denouncing. Barnett’s conclusion: “I almost admire Jeff Rosen’s chutzpah.” I wholeheartedly admire Randy Barnett’s, and I still hope that Chief Justice Roberts has decided to reject it.

Jeffrey Rosen is the legal affairs editor of The New Republic.

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