Did John Roberts listen to the better angels of his nature?

Orin Kerr tells an interesting, albeit speculative, story.

Update This post is obsolete.

Orin Kerr tells a rather plausible – though, as he frankly says, speculative – story: that John Roberts’s original vote against Obamacare was purely political – a mix of partisan and factual factional loyalty and payback for Obama’s vote against his confirmation – but that he became convinced that striking down the law would be inconsistent his confirmation-hearing “judging as umpiring” stance.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

19 thoughts on “Did John Roberts listen to the better angels of his nature?”

  1. I don’t see this. There is no way a “judge as umpire” could rule against the Constitutionality of the mandate under the Commerce Clause, and rule for it on the Tax Clause. The rules of judging are clear enough. The holding of the case does not include anything unnecessary to its decision. Judge as umpire doesn’t do unnecessary dictum.

    1. There is no way a “judge as umpire” could rule against the Constitutionality of the mandate under the Commerce Clause, and rule for it on the Tax Clause.

      Can you explain?

      For example, I would get a tax benefit if I bought a heat pump (if I owned a house, that is). I’d argue that that polciy is fairly clearly legal (1) as an exercise of the tax power, but requiring me to buy a heat pump on pain of jail time would not be legitimate under any power.

      1. Sorry, Sam, I was too compact.

        Your logic is correct, but I don’t think you understand judicial practice. Appellate judges know that they unavoidably make law, and they know that this is problematic in a democratic society. They’ve therefore adopted a number of practices that limit the amount of law they create to a minimum. For example, they generally limit their legal analysis to that needed to decide the case in front of them. (The majority went beyond the facts of the case in Citizens United–this was considered very bad behavior even by many lawyers who agreed with the ruling.) Roberts did not do this in the Health Care Cases, but committed another no-no. A judge is supposed to avoid dealing with Constitutional issues to the greatest extent possible. If a statute can be read to be Constitutional, a judge will take this reading, even if s/he thinks that the unconstitutional reading is a better one. Similarly, if a judge thinks that a statute is Constitutional on one ground but not the other, s/he will not discuss the other ground, which is unnecessary to the decision. This is not only a matter of appellate modesty; it is a matter of common sense. As Justice Roberts observed, the Federal government is a government of defined powers. All you need is one defined power to uphold a statute–looking at the others is a waste of time. A judge would never observe that the ACA falls outside the permissible bounds of Congress’ power to–say–grant a letter of marque and reprisal. It’s true, but why bother to say so?

        To go back to the umpiring analogy, umpires just call balls, strikes, and outs. They do not opine on the quality of the play.

      2. I find Randy Barnett’s argument contrary argument compelling: detailed version here, summary here, takeaway is:

        In Obamacare, the mandate was called an “individual responsibility requirement.” To “save” the rest of Obamacare, the Supreme Court deleted the “requirement” part. So the mandate is gone. What’s left is a tax.

        1. I don’t know why you find Barnett’s argument compelling. I find it sophomoric. The fact that it was called “an individual responsibility requirement” but is not called a tax is a distinction without a difference. In either case, the individual citizen is compelled to buy government approved health insurance or pay a penalty. What’s the difference?

      3. You have the traditional (e.g., up until this case) theory of the Congress’s taxing power exactly backwards. Providing incentives for people to do something or buy something isn’t an exercise of the taxing power but rather of the spending power.

        Modernly, the power to levy taxes has been understood as a federal power to raise revenues and not something expressly related to behavior modification. Indeed, the two main surviving (and relevant) limitations on the taxing power are uniformity and that taxes can’t be destructive in the sense that the power to tax must be used to raise revenues and not to indirectly regulate or prohibit activity that the federal government could not otherwise reach directly.

  2. Doubt that. I take him at his word. The Court starts from the supposition that it won’t throw out legislation unless it can’t find constitutional grounds to uphold. By his (admittedly) labored logic by which he reconfigured the penalty as a tax, he found grounds to support the legislation. Note the dissent doesn’t really quarrel with whether Congress has the power to levy such a tax. It spends a lot more energy on the argument that the Court should not be rewriting the legislation to enable it to survive. After all, their is a strong argument that the bill would have failed as (re)written by Roberts, and Congress did not get a chance to vote on the rewrite. That is a point about which intelligent minds can disagree, and that seems to be what happened.

    As to whether Roberts held up his end on behalf of conservatives, most seem to be saying no today, as even a scan of the WSJ op ed pages would make obvious. However, I think in Roberts mind, he did the cause more good than harm by enunciating the limiting principle with regard to the Commerce Clause, ending 70 years of unfortunate precedent (and it is within the Court’s right to do that; they have done it on behalf of liberals as well as conservatives) and by invalidating the more extreme penalty for states opting out of the Medicaid expansion. The latter, by the way, makes PPACA plainly unworkable, (as if it wasn’t before) and that’s why you even hear administration people now acknowledging that fixes are badly needed.

    1. Plainly unworkable in Red states determined to refuse federal money and hurt poor people in order to make a political point.

      1. I am increasingly of the view that the fact that people in red states won’t get the benefits of ObamaCare isn’t my problem. They elected the governors and legislators they elected and will need to live with the consequences. I appreciate that we are returning to an era where elections and elected officials are openly bought and paid for by the Masters of the Universe. But there are enough people of the working and middle classes (and even the ordinary rich) in most red states to vote the bums out if they were willing to not be become distracted by the culture war and focus on what’s important to their own futures. If that path is blocked by the GOP’s despicable machinations, then they will need to pick up their pitchforks and torches and get busy. It’s their lives and their fight—they need to do it.

  3. Well, Gordon Wood has a chapter in Empire of Liberty in which he outlines the evolution of the judicial power in the United States. Originally, judges were not considered a separate branch of government, but were part of the magistracy and often participated in politics. John Jay was the first Chief Justice, but at the same time briefly served as acting Secretary of State and was still Chief Justice when he went to England to negotiate the Jay Treaty; he even ran for Governor of New York in 1792. Other Federalist justices campaigned for John Adams in the election of 1800. Current understandings of the judicial power took time to evolve.

    Antonin Scalia is an originalist; perhaps this explains why he has been willing to be overtly political in some of his pronouncements from the bench. He is only doing what many of the original Federalists would not hesitate to do.

  4. Should that read “a mix of partisan and factional loyalty” instead of “factual loyalty”?

    Attributing any loyalty with the likes of Scalia and Thomas a “factual” basis seems utterly illogical.

    Blame it on the spell checker.

    As to the states refusing Medicaid, as a practical political matter almost all state representatives and half the state senators are up for reelection and the healthcare industry will now be pouring money into swinging as many as possible around to reason over ideology [Adams’ “study of idiots”]. That means lots of money and local organizing just got redirected to Democratic candidates that likely would have gone to the undemocratic.

    1. Correct: “factual loyalty” would be a big improvement. Source of error more likely jet-lag than spell-checking. Fixed now.

  5. I see nothing in the man’s history to suggest that he would listen to the better angels of his nature, even assuming that conservative political hacks possess such creatures. I continue to hold to the position that Roberts would have made a political decision to strike down the mandate but that he felt increasingly boxed in by the Scalia clown show and feared the institution he heads would be irreparably damaged from the firestorm that another 5-4 split decision in a politically charged case would have ignited. I think he’s simply a conservative political operative who lost his nerve.

    David Frum has posted an email from one of his readers who clerked for an appellate court. He has a somewhat similar position to mine but his explanation is far better written and better thought out than mine. He are the thoughts of his correspondent:

    “[T]he jointly-written dissent was intended to be majority opinion. Any informed reader would reach that conclusion after the first three pages — and then again when seeing the fact that any and all problems with the actual majority decision are addressed only at the end of it, following an oddly placed ” * * *.”
    The following is speculation, but plausible, and would be an interesting parallel to the conservative legislative strategy. Any objective legal observer would tell you (and I’m trying to be one here) that the dissent’s treatment of the severability issue is detached from 200 years of constitutional law. It’s unsupported legally and it’s a mess logically. It also includes a citation to a quote that Harry Reid gave to the New York Times in Janauary 2010 concerning the bill — this from at least two justices (Scalia and Thomas) who routinely say that any use of legislative history is a sham because it’s necessarily incomplete. One wonders what a quote not uttered on the floor of Congress but to a journalist would constitute in that case? In any event, rather than holding the mandate costitutional and those portions of the bill inextricably linked with it (guaranteed issue/community rating), four members of the Court were primed to throw the whole bill out. That level of judicial activism, in a context like this one, would be nearly unprecedented.

I imagine the dissenters either had Roberts’s vote or that Roberts left the post argument conference without commiting to a side and saying something to the effect of “let me see how it writes.” He certainly didn’t trust the dissenters, as he clearly instructed his law clerks to begin working on an alternative majority opinion (the final product was too polished and too long to have been written at the last minute). And he waited to see what was written.
    What was written was not measured judicial analysis, but rather an opinion that started with a goal — throw the bill out — and then figured out how to get there, blowing by any precedent in its path. The challengers were right in one respect, in that the mandate was a unique use of federal power that had not been considered by the Supreme Court. But severability had been considered by the Court literally dozens of times, and the four dissenters charged right by what those decisions had said.

So Roberts was left with a choice: engage in the severability analysis himself (a messy task indeed) or find some other way to uphold the bill. He chose the latter, and the result is what we have today.

That dissent intended to get his vote. It might have had it only struck a portion of the law. But Roberts correctly realized that he couldn’t jump off that cliff without precedent or logic supporting him. Kennedy, Alito, Scalia, and Thomas went all in. And they lost their bet. Just like the conservatives in Congress.”

    (Here is the link to the piece on the Daily Beast:http://www.thedailybeast.com/articles/2012/06/29/scalia.html Even though I’ve quoted all that Frum’s reader had to say, I include the link and suggest that it would be courteous to click through to Frum’s site anyway).

  6. I do not see how unsupported speculation about motives and thoughts can become obsolete. Falsified or superseded by actual evidence but surely not obsolete.

    1. A theory is obsolete when supplanted by a more elegant theory. Pollack’s quantum-field approach to SCOTUSology is superb.

      1. I agree. Pollack’s theory makes better sense and is better grounded factually

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