Jeffrey Rosen: Big Chief

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POLITICS JULY 13, 2012

Big Chief

BY JEFFREY ROSEN

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IN THE WEEKS BEFORE the Supreme Court decided the fate of the Affordable Care Act, conservatives became increasingly worried that Chief Justice John Roberts was about to lose his nerve. The columnist George Will accused liberals of “put[ting] the squeeze” to Roberts, in the hope that he would “buckle beneath the pressure.” Fueling the hyperbole was a familiar fear: that Roberts would join the ranks of conservative apostates on the Court who have turned out to be less than ideologically pure.

Conservatives have long feared that Roberts might care too much about seeking common ground with liberal justices. While his political beliefs and judicial philosophy are conservative, Roberts employs a more conciliatory style than, say, Antonin Scalia. And unlike, for example, Clarence Thomas, who lives in a conservative social bubble, Roberts cares deeply about the Court’s image in the outside world.

And so, when Roberts indeed became the only conservative to join the four liberals in voting to uphold President Obama’s central legislative achievement, the right feared that its worst nightmare had come to pass. Howls of betrayal soon followed. National Review charged in an online editorial that Roberts had “done violence” to the Constitution. Marc Thiessen, writing in The Washington Post, attacked the chief justice for his “sophistry” and concluded that the right needs jurists with “the intestinal fortitude not to be swayed by pressure from The New York Times, the Georgetown cocktail circuit and the legal academy.”

Meanwhile, liberals found themselves in the unexpected position of applauding Roberts for his act of judicial statesmanship—unexpected because, in recent years, many on the left had cast Roberts as a radical bent on rewriting vast swathes of U.S. law. Now, the health care ruling had exposed for the first time a deep rift between Roberts and his conservative colleagues. Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Samuel Alito had revealed their willingness to strike down much of the post–New Deal regulatory state; Roberts had wisely balked at the prospect. This startling break left observers of all political stripes wondering: Had John Roberts experienced a change of heart?

AT THE END OF ROBERTS’S first term as chief justice in July 2006, I interviewed him in his chambers at the Supreme Court. Our conversation, which I wrote about in an article for The Atlantic, was wide-ranging, but Roberts returned repeatedly to one theme: his desire to restore the bipartisan legitimacy of the Supreme Court.

In Roberts’s view, the Court was losing respect with the public because it issued too many rulings along partisan lines. “I do think the rule of law is threatened by a steady term-after-term focus on five–four decisions,” he said. “I think the Court is also ripe for a similar refocus on functioning as an institution,” he told me, “because if it doesn’t, it’s going to lose its credibility.”

Roberts said he had been inspired by the example of his greatest predecessor, John Marshall. “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,’” he said. “But instead he said, ‘No, this is my home now, this is the Court, and we’re going to operate as a Court, and that’s important to me.’”

As we talked, it became clear that Roberts saw the promotion of consensus in service of the Court’s long-term interests as the greatest test of a successful chief justice. “I think judicial temperament is a willingness to step back from your own committed views of the correct jurisprudential approach and evaluate those views in terms of your role as a judge,” Roberts explained. “A justice is not like a law professor, who might say ‘This is my theory of this, and this is what I’m going to be faithful to and consistent with, and in twenty years we’ll look back and say, I had a consistent theory of the First Amendment as applied to a particular area,’” he said. “Coherence in the Court’s jurisprudence is more important than coherence in each individual justice’s jurisprudence.” He added, in a remark that now seems prescient, “I would like to think, looking back, that my opinions show a concern about the legitimacy of what we’re doing is an important part of the inquiry in each case.” The fact that Roberts was willing to defend the Court’s institutional legitimacy in the health care case confirms that he meant what he said.

His conservative colleagues, however, didn’t see it that way. In early July, three days after the health care decision was released, Jan Crawford of CBS News reported that Roberts had initially voted with the four conservatives to strike down the health care law but later switched sides. The conservatives were livid, according to Crawford, accusing Roberts of folding to liberal pressure and refusing to join even the parts of his opinions with which they agreed. In their dissent, Scalia and his colleagues made their anger plain. They sneered at the majority’s “feeble” arguments and ostentatiously referred to Justice Ruth Bader Ginsburg’s concurring opinion as a dissent, in order to draw attention to the vote switch. The fact that the story came to light was itself a sign of the conservatives’ deep sense of betrayal: Crawford attributed her report to “two sources with specific knowledge of the deliberations”—meaning either that the conservative justices or their clerks talked or that those with whom they discussed the case felt free to embarrass the chief justice on the conservatives’ behalf.

On the face of it, the conservatives’ extreme displeasure was hard to fathom, since Roberts’s so-called betrayal was only partial. While he voted to uphold the Affordable Care Act (ACA), he joined the conservatives in accepting the novel argument that health care reform was unconstitutional because Congress can only regulate economic activity, not economic inactivity—such as the failure to buy health insurance.

But perhaps the real reason for the conservatives’ anger was that Roberts had decided to protect the long-term institutional interests of the Court rather than embrace the conservative ideological agenda in its most radical dimensions. In their joint dissent, Scalia, Alito, Thomas, and Kennedy outed themselves as partisans of the Constitution in Exile—the movement of economic libertarians who want the courts to resurrect pre–New Deal limits on federal power in order to dismantle the regulatory state piece by piece. The four conservatives railed about the need for the courts to protect states’ rights and individual liberty—even if doing so meant overriding the wishes of the people’s representatives. “Article I contains no whatever-it-takes-to-solve-a-national-problem power,” the dissenters huffed, in a phrase that sounded like the handiwork of Justice Scalia.

Roberts refused to join them. Instead, he emphasized Congress’s broad powers to solve national problems and the importance of judicial deference to Congress’s policy choices. And even in his endorsement of the “economic inactivity” argument, there were important differences between his approach and that of the four conservatives. Roberts and Ginsburg both noted that mandates to purchase goods are extremely rare and Congress has never relied on the Commerce clause to justify them. Therefore, the Court’s opinion is unlikely to constrain national policy in practice—in the event that Congress wants to mandate the purchase of any product in the future, it can now do so by invoking its taxing power. By contrast, the four conservatives embraced an even narrower interpretation of the Commerce clause and the taxing power. Justice Ginsburg’s powerful dissent on this point accused them of having embraced a “stunningly retrogressive” reading of the Commerce clause, threatening the return of an “era in which the Court routinely thwarted Congress’s efforts to regulate the national economy.”

Roberts also parted ways with his fellow conservatives over the question of Congress’s spending authority. In one of the more convoluted sections of the ruling, seven justices found that the ACA’s expansion of Medicaid was unconstitutionally coercive, because states that refused to participate would lose all their federal Medicaid funding, amounting to more than 10 percent of their entire budgets. However, Roberts and the liberals allowed the Medicaid expansion to stand by making a pragmatic fix—they simply prevented the government from threatening to withhold existing Medicaid funds. The four conservatives would have struck down the entire expansion, using logic that would call into question the constitutionality of many federal grants that impose conditions on the states, not to mention Medicaid itself.

For all the drama surrounding Roberts’s decision in the health care case, it was entirely consistent with his behavior since he joined the Court. His worldview is conservative, and he votes with the conservatives more often than not. But he has never joined them in embracing the most radical form of the Constitution in Exile. He generally favors narrow rulings over broad ones when possible, and prefers to chip away at precedents incrementally rather than to overturn them cleanly. (Justice Scalia scoffed at this incrementalism as “faux judicial restraint.”) He is willing to embrace “saving constructions” of laws in the spirit of John Marshall (Thomas Jefferson, Marshall’s archrival, derisively called them “twistifications”) in order to avoid striking down federal laws, as he did in the 2009 case upholding the Voting Rights Act. Yet, when Roberts believes that no such twistifications are possible, he enforces constitutional principles he cares about in sweeping terms, as he did in the Seattle affirmative action case that outlawed a program to integrate city schools.

All of these instincts converged in the health care case, in which Roberts set aside his ideological preference to protect the Court from a decision along party lines that would have imperiled its legitimacy. After initially siding with the conservatives, Roberts tried to persuade his liberal and conservative colleagues to converge around a result that would avoid a sweeping 5–4 ruling along party lines, according to Crawford. When that proved impossible, he chose the least disruptive path, upholding the mandate by finding that it was within Congress’s taxing power. The decision revealed the chief justice as a master strategist with a nuanced concern for institutional integrity that is less dramatic or nefarious than the characterizations advanced by partisans on the left or the right. But grasping these nuances is crucial to understanding how Roberts is shaping the Court.

WHAT DOES ALL THIS mean for the next term and beyond? The rift between Roberts and the other conservatives will most likely be repaired. The conservatives need his vote too urgently to maintain their temper tantrums for very long. And the liberal victory in the health care case may come at a high price, since Roberts now has the bipartisan cover to reassert his conservative credentials. He may not be an ideologue like Scalia or Thomas, but he has strong views on certain issues—such as the color-blind Constitution and the importance of protecting business interests against regulation by litigation. His health care votes may embolden him to join the conservatives in striking down not only affirmative action and the Voting Rights Act next year, but in enforcing other limits on federal power in the future.

Whether Roberts forgets the sniping of his colleagues is another matter. But with his deft performance in the health care case, Roberts made the Court his own in a way of which Marshall would have approved. Like Marshall, Roberts means to act strategically, over decades, always looking ahead and biding his time.

Jeffrey Rosen is the Legal Affairs Editor of The New Republic. This article appeared in the August 2, 2012 issue of the magazine.

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