PLANK JUNE 29, 2012
-
Read Later
READ LATERAvailable only to subscribers. SUBSCRIBE TODAY
-
Listen
ARTICLE AUDIO
- Font Size
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.
18 comments
Sorry to sound cynical, but it's like, I'm going to prove I don't hate you by giving you a kiss (mwhah!). But just one kiss.
- Nusholtz
June 29, 2012 at 10:26am
The decision was written in an easy to read style and those who lit up their keyboards to write the decision should feel good about their work. I wonder how many future decisions of the US Supreme Court will rely on this decision as precedent.
- Doug12
June 29, 2012 at 11:06am
Just one kiss won't make anyone pregnant. The problems facing our political system now are something like how to have safe sex. Conservatives are like “abstinence only fanatics” who pretend not to indulge their desires (while often secretly straying); while liberals tend to openly endorse anything goes, which doesn't work any better.
- skahn
June 29, 2012 at 11:16am
yup. Look at all the little political systems running around making noise.
- Doug12
June 29, 2012 at 11:25am
Bottom line. At this point in time, SCOTUS decisions are made mostly on political bases. To believe otherwise is as naive as believing that bipartisan compromise was the way to govern in 2009.
- drofnats1
June 29, 2012 at 12:12pm
Let me see if I've got this right. You cannot *regulate* inactivity through the Commerce Clause, but you can *penalize* inactivity through the taxing power? Not sure I see the Marshall like brilliance here, even if I'm glad Roberts voted the way he did. Methinks Justice Ginsburg got this one right.
- timteeter
June 29, 2012 at 12:59pm
I don't know if Roberts sees it this way, but beyond upholding the Court's legitimacy, he also clarified its role and put a proper and heavy weight on Congress and the voting public. His aside that it's not the Court's role to save people from their political choices is, to me, the best insight into what the ACA decision does. It puts it in the realm of politics, not judicial activism, which is where it always should have been.
- polcereal
June 29, 2012 at 1:57pm
Apparently, timteeter, Roberts came to the conclusion that the ACA needed to be upheld -- not to over-ride Congress -- but the Commerce Clause "you can't regulate inactivity" concept also needed to be upheld. He didn't want to expand use of the Commerce Clause in this case. So he used the "a penalty run through the IRS is a tax" obfuscation, to justify keeping the ACA, because Congress can set a tax on anything it wants. And it's an obfuscation, because all the debates at the time SAID this definitely wasn't a tax. Definitely. However, this reasoning let him both uphold the ACA, AND limit use of the Commerce Clause. While I don't share his "you MUST buy Broccoli!" concerns, I'm still glad he upheld the ACA.
- AllanL5
June 29, 2012 at 2:12pm
AllanL5 "a penalty run through the IRS is a tax" obfuscation" The courts have to be very careful not to diminish the taxing power. If the Court ever should open the door to treating anything that looks like a tax as being unconstitutional, taxpayers will react like those scenes in the movie Aliens where the aliens sense movement and start to slither attack; or maybe mounting an all out frenzy attack, like the army ants in the movie Leiningen and the Ants.
- Nusholtz
June 29, 2012 at 4:38pm
@timteeter, I think the key distinction is that while Congress can penalize pretty much anything it wants to, it can only do so via the taxing power. And the only thing the taxing power allows Congress to do is demand money. It can't throw you in prison for not buying health insurance. It can't brand you a felon. It can't deny you voting rights or send you to the electric chair. (Although it can in theory set the tax so high as to drive you into bankruptcy.)
- Dausuul
June 29, 2012 at 4:39pm
polcereal has it. Emphasizing taxation as the source of authority localizes proximal spheres of influence and has the practical effect of making this very ambitious program more answerable to and thus amenable to a harder working solution. It's more hazardous to be a member of congress these days but that is how it should be. It also demands that the public be more informed and makes provisioning the program less problematic and more responsive to local realities. We'll end up with 50+ experimental labs which will provide working examples of success and failure from which to borrow, choose and improve. It's all good. Perhaps Roberts and Kennedy were chasing bong hits with some fine single malt and conspired with a ' Let's mess with their little heads by laying down a 'how to cheat big brothers ambitions' and still satisfy the common good.
- jacko
June 29, 2012 at 4:44pm
Allan, it's not obfuscation. It doesn't matter what people said. (And many said it was a "tax," anyway.) The constitutionality of a law doesn't turn on mere labels, and certainly not on labels used outside the law itself -- say on the floor of Congress or in TV interviews. This was always an easy case under the taxing power, because the mandate is functionally a tax penalty. Piece of cake. I must say, though, that I'm not in such awe of the process Rosen describes. I think that most would find it scandalous if the judges were trading votes. Does Rosen really think that Roberts conditioned his vote on Kagan and Breyer going along with him on the Medicaid expansion? Was this an explicit quid pro quo? How principled! The "legitimacy" of it all gives you goose bumps!
- JakeH
June 29, 2012 at 9:50pm
If 9 highly trained top legal minds cannot agree on what's in the Constitution, imagine how hard it must have been to get the framers to agree to it; and maybe they actually got tired of arguing over it, left it unfinished, and decided that they would leave the problem for someone else, which is not politically unusual at all.
- Nusholtz
July 1, 2012 at 3:49pm
Y'all really don't get it. At this point in time, SCOTUS decisions are made mostly for political/ideological reasons. To believe otherwise is as naive as believing that bipartisan compromise was the way to win votes and govern 2009 - 2012. Roberts decision to NOT to overturn ACA at this time was a political, NOT a legal, decision. The five radical right justices will advance their political agenda whenever possible. Only the decisive political defeat of the right will prevent constantly-rightward movement. And that defeat will NOT come in 2012, whether or not BHO is re-elected. You can place bets that if re-elected, BHO will not appoint another SCOTUS judge should there be a vacancy.
- drofnats1
July 1, 2012 at 6:55pm
Nusholtz -- I am shocked. Next you will tell me that the Constitutional Framers allowed white people to keep black people as slaves and winked at massacring aboriginal people while stealing their land. That's the kind of evasion that leads to bloody Civil Wars and arrows shot through heroic generals like Custer.
- skahn
July 2, 2012 at 12:02am
drofnats, I'm going to try to introduce a little subtlety into your account, which, of course, you're free to reject. It's true that the conservative justices tend to vote for politically conservative results and the center-left justices -- I won't say "liberal," because they're not really; "liberal" would be Douglas or Thurgood Marshall, the likes of which we haven't had on the Court for some time -- tend to vote for politically more liberal results. There's even research that backs that up -- conducted by the University of Chicago's Department of the Obvious. But this account mistakes what's going on. It suggests that the justices consciously and cynically determine first what political result they want and then find whatever legal materials to support it, without any concern for consistency or logic or reason or legal or judicial philosophy (except, of course, as a show, a bullshit wrapper). That's not what *they* think they're doing. I can guaranty that the justices have strong *legal* opinions -- not just political opinions -- and that they see what they're doing as vindicating the former, not just the latter. That goes for the conservatives too, maybe even especially the conservatives, who have developed a rather elaborate, albeit unattractive, judicial philosophy, which, I'm pretty sure, they sincerely believe in even if they don't always strictly follow it. What's the difference? you might ask. Isn't it all politics in the end? *Maybe*, but it's worth recognizing that law and politics involve different intellectual processes -- not merely different ways of talking, but different ways of thinking. A policy-maker is free to do what she thinks is right or beneficial -- to justify a political opinion by saying simply, as Obama has been doing lately, "It's the right thing to do." A judge does not have that role, and is not permitted that justification. She must, in some plausible sense, be guided by the law, even if the law does not say what she wants it to say. It's true that the Supreme Court deals exclusively with more difficult cases where the legal materials can be seen as indeterminate. Some legal thinkers, like Richard Posner, say that this indeterminacy is a warrant for engaging in a more political analysis. The question in such cases, as he sees it, is simply, "What's the most reasonable thing to do, all things considered?" But even that question, with its invocation of "reasonableness" and "all things considered" -- rather than "rightness" -- suggests a principled moderation consistent with more traditional "legal" thinking. One of the "all things" to be considered, after all, is the federal judge's unelected lifetime tenure and the common-sense proposition that there's at least *some* difference, conceptually speaking, between "What I want" and "What the law requires." I'm intrigued by your evident opinion that Roberts's decision was cynically political. This assumption on your part is consistent with your worldview, but that's all it has to recommend it. Some have been saying that Roberts's decision "gutted" the commerce clause. First of all, that's absolute nonsense. His commerce clause opinion rests on an "activity/inactivity" distinction that's unlikely to arise in future legislation (unless Congress tries to pass the broccoli mandate) and thus unlikely to meaningfully constrain Congress or bring into doubt past legislation passed pursuant to the interstate commerce power. Second of all, even if I'm wrong about all that, Roberts could have struck the same blow *and* struck down Obamacare. If he's so political, why not have his cake and eat it too? Why uphold (almost entirely) Obama's signature accomplishment? Rosen's answer is that Roberts is being political and pragmatic -- not really "legal" -- but in a more defensible way. He's saying that Roberts is protecting the institution by not wanting to have the Court turn into an arm of political opposition to the administration. Perhaps. I'm persuaded that Roberts has these concerns and sees addressing them as part of his job. It's also possible, though, that Roberts actually bought the government's taxing power argument. It is, after all, a pretty straightforward argument, and actually has fewer *legal* problems -- i.e, problems of legal reasoning -- than the commerce power argument. It's always struck me as the *legally* and *logically* easiest argument to make, one bedeviled heretofore only by confusion over mere labels and their overstated significance. In other words, if you're right, I don't understand why we still have the ACA. What's your explanation?
- JakeH
July 2, 2012 at 4:25am
Here are two comments: 1. 07/01/2012 - 6:55pm EDT; and 2. 07/02/2012 - 4:25am EDT. The second one is thoughtful and nuanced. Which one, I therefore wonder, is full of self aggrandizing bluster that tries makes up for its lack of subtlety with declaratory noise parading as certainty?
- basman
July 2, 2012 at 12:49pm
drofnats: "You can place bets that if re-elected, BHO will not appoint another SCOTUS judge should there be a vacancy." Can I introduce a new category of statement? "Loopy" (combining the nuanced and the wacky) would seem to apply in this case. It's more likely than not that there will be a retirement or even an unfortunate terminal event like Rehnquist's during Obama's second term, if he's re-elected. The president will propose a candidate and the process will begin. It will be difficult of course with screaming constituencies on the Right (and a few on the left) but both Sotomayor and Kagan eventually got their Senate vote and are now on the bench.
- ironyroad
July 2, 2012 at 1:42pm