During his confirmation hearings seven years ago, John Roberts presented himself as a man who by both temperament and philosophy fully embodied the virtues of restraint. He would deliver rulings when asked but not otherwise intrude his views. As a judge he would observe a traditional deference to legislators on policy matters, intervening only when necessary; as a member of today's court he would recognize the weight (though not unchangeability) of decisions from the past. His most memorable way of making the point was to liken himself to an umpire who would call balls and strikes but not root for the either team.
In interviews and profiles in the first months after his confirmation, Roberts conveyed his ambition to be a Chief who might pull the squabbling court together, with more large-majority opinions and fewer 5-4 partisan splits. Everyone could draw hope from these sentiments from a brilliant young Chief with a long career ahead of him.
The problem is that on the bench, from September 29, 2005 until this morning, Roberts gave so little evidence that he would practice what he had preached, and so much that he would instead undertake an activist agenda with a partisan bent. Citizens United was the most dramatic but not the only example of a Chief and his majority who went out of their way to answer questions not posed by a case, and through those answers to undo what had seemed settled law. The sporting analogy, as mentioned before, would be an umpire who calls balls and strikes -- and also yells "pass interference" or "foot fault" about games he sees from the corner of his eye.
That was until today. In making a majority to sustain the mandate / "tax," the Chief Justice gave his first substantial demonstration of loyalty-to-institution outweighing loyalty-to-cause. I am willing to believe that this has been his real intention all along; that he was increasingly concerned that his legacy might be a Court whose legitimacy ebbed as its partisan predictability rose; and that he finally found the way to express his true "institutionalist" nature. To gauge the importance of this move by the Chief Justice, consider the political and legal world we would know today if he had joined the other side to make a 5-4 majority for totally overthrowing the law, perhaps accompanied by a hyperpoliticized Scalia concurrence. I stand by my previous (much objected-to) contention that this would have aggravated a genuine legitimacy crisis for the Supreme Court. [See Jonathan Chait to similar effect: "Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled."]
I am not equipped to swim into the maelstrom of Supreme Court deepthink underway right now, including analyses of the long-term implications of Roberts's ruling for the Commerce Clause. (Two good starting points, by Epps pere et fils, and this from the NYT). I attach another, from a reader, below.
The main point is: the observable facts about the Chief Justice's vision and beliefs are very significantly different today from what they were before 10am EDT. The change is all to the good, for the Court and the country.
Charlie Stevenson, a longtime Senate staffer and academic often quoted here, writes to say:
I'm not a lawyer, but I have done a lot of research on the writing of the Constitution and its implementation in the early years of the Republic. II also think I know a little about politics.
While I have no way of knowing whether the Chief Justice in fact holds any of the views I will ascribe to him, I suggest these hypotheses as highly plausible.
-- Roberts recognized growing criticism of the Court for partisanship and welcomed a way of reducing those attacks.
-- He was personally opposed to the Affordable Care Act but recognized the weight of judicial precedents in favor of its constitutionality.
-- He found, and occupied, a clever middle ground that gave both liberals and conservatives much that was pleasing to them.
-- For the conservatives, he opposed the validity of the individual mandate under the Commerce Clause and opened the door for later challenges to social legislation under it; he also took a more restrictive position on Medicaid and its burdens on the states.
-- For the liberals, he upheld the basic law under the congressional taxing power.
-- Cleverly, Roberts got the court to say that, though the law was a tax, it was not subject to the 1867 Anti-Injunction Act preventing judicial review of taxes until they are actually collected.
Deft work, Mr. Chief Justice.
Deft work, at many levels.
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