PLANK JUNE 29, 2012
In 2006, at the end of his first term as Chief Justice, John Roberts told me that he was determined to place the bipartisan legitimacy of the Court above his own ideological agenda. But he recognized the difficulty of the task. “It’s sobering to think of the seventeen chief justices,” he said. “Certainly a solid majority of them have to be characterized as failures.”
Specifically, he was concerned that his colleagues were too often handing down 5-4 decisions that divided along predictable party lines, which made it hard for the public to maintain faith in the Court as an institution that transcends politics. Roberts pledged to try to persuade his colleagues to avoid party line votes in the most divisive cases. Roberts said he would embrace as his model his judicial hero, John Marshall, who sometimes engaged in legal “twistifications,” to use Thomas Jefferson’s derisive phrase, in order to achieve results that would strengthen the institutional legitimacy of the Court.
In the health care case, Roberts produced a twistification of which Marshall would have been proud. He joined the four liberals in holding that the Affordable Care Act's individual mandate was justified by Congress’s taxing power even though he also joined the four conservatives in holding that the mandate was not justified by Congress’s power to regulate interstate commerce.
For bringing the Court back from the partisan abyss, Roberts deserves praise not only from liberals but from all Americans who believe that it’s important for the Court to stand for something larger than politics. On Thursday, Roberts did precisely what he said he would do when he first took office: He placed the bipartisan legitimacy of the Court above his own ideological agenda. Seven years into his Chief Justiceship, the Supreme Court finally became the Roberts Court.
IT WOULD BE easy, of course, to question the coherence of the combination of legal arguments that Roberts embraced, but it would also be beside the point: Roberts' decision was above all an act of judicial statesmanship. On both the left and the right commentators are praising his “political genius” in handing the president the victory he sought even as he laid the groundwork for restricting congressional power in the future.
That’s why it was foolish for conservatives to worry that Roberts could be intimidated by President Obama and other liberals who warned that a 5-4 Republican-Democratic vote striking down health care would represent a failure of Roberts’s bipartisan vision. Roberts understood this on his own: Anyone who cared enough about his legacy to discuss it at the beginning of his tenure is far too savvy to be swayed by warnings from the left or right. Whether or not Roberts voted to uphold the mandate after the initial decisions were drafted, as some commentators are now suggesting, Roberts knew that the health care decision would be the defining moment of his early tenure, and he rose to the occasion.
That’s not to say that Roberts has reinvented himself as a liberal: He has strong views that he’s unwilling to compromise, and with his strategic maneuvering in the health care case, he has now increased the political capital that will allow him to continue to move the Court in a conservative direction in cases involving affirmative action and the voting rights act, both of which he may well strike down next year by 5-4 votes. Marshall achieved a similar act of judicial jujitsu in Marbury v. Madison, when he refused to confront president Jefferson over a question of executive privilege but laid the groundwork for expanding judicial power in the future.
But Roberts’s career defining choice in the health care case calls to mind the bipartisan ambitions not only of John Marshall but also Barack Obama. Like Roberts, Obama came to Washington as a Harvard educated lawyer who was strongly identified with one side of the political spectrum but believed in the virtues of bipartisanship. Obama expressed that belief by endorsing a version of the health care mandate that had the imprimatur of conservatives ranging from Mitt Romney to the Heritage Foundation. But despite strenuously reaching out to Republicans in the health care debate, Obama was able to win only one Republican vote (that of Joseph Cao (R-LA).) And Obama found himself assailed on both his left and right flanks from ideological purists who saw any kind of moderation as a form of apostasy.
Roberts now faces similar attacks from the left and right over the health care case for the compromise he forged with the pragmatic liberals, Elena Kagan and Stephen Breyer, over the Medicaid expansion. All three justices concluded that it violated the Constitution by threatening states with the loss of their existing Medicaid funding, but could be saved by removing the threat. But by joining the liberals in upholding the mandate, Roberts was able to persuade them to join him in restricting Congressional power. On health care, both Obama and Roberts exercised something increasingly rare in a polarized age: bipartisan leadership, which inherently requires compromise.
In a sense, all of the justices in the health care case reached decisions that coincide with their judicial philosophies and temperaments. Roberts was more interested in institutional legitimacy than philosophical purity. The pragmatic liberals, Kagan and Breyer, were willing to meet him half way. The more civil libertarian liberals, Ginsburg and Sotomayor, were not. Among the conservative dissenters, the romantic libertarian, Anthony Kennedy, proved as unalterably opposed as ever to incursions on liberty, regardless of whether they came, in his view, from the right as from the left. The tea party conservative Clarence Thomas filed a separate statement making clear how radically he wanted to restrict federal power. And the newly minted devotee of states rights, Antonin Scalia, included sclerotic rhetoric warning of the apocalypse. Scalia, increasingly, sounds more like an angry pundit than a neutral judge, and in the process, he gives us a vision of what both the liberal and conservative wings might have sounded like if Roberts hadn’t prevented them from polarizing entirely.
Of course, it didn’t all come down to judicial temperament. In the most divisive constitutional cases, the substance of legal arguments will always play a part. Arguments by liberal scholars who care about constitutional text and history, such as Neil Siegel of Duke Law School, were reflected in Chief Justice Roberts’s opinion about the taxing power. Justice Ginsburg’s defense of Congress’s power to pass the mandate under the commerce clause adopted New Textualists arguments by Jack Balkin of Yale Law School about how the framers of Article VI of the Virginia Plan during the Constitutional Convention would have wanted Congress to coordinate economic action in areas where the states were powerless to act on their own. The majority opinion also vindicated Solicitor General Don Verrilli’s decision to emphasize the breadth of Congress’s taxing power. But in the end, there are good arguments on both sides of any constitutional question, and justices have broad discretion to pick and choose among competing legal arguments based on a range of factors—including concerns about text, history, precedent, or institutional legitimacy. The fact that Roberts chose to place institutional legitimacy front and center is the mark of a successful Chief.
As Roberts recognized, faith in the neutrality of the law and the impartiality of judges is a fragile thing. When I teach constitutional law, I begin by telling students that they can’t assume that it’s all politics. To do so misses everything that is constraining and meaningful and inspiring about the Constitution as a framework for government. There will be many polarizing decisions from the Roberts Court in the future, and John Roberts will be on the conservative side of many of them. But with his canny performance in the health care case, Roberts has given the country a memorable example of what it means to be a successful Chief Justice.
Jeffrey Rosen is the legal affairs editor of The New Republic.