John Roberts and the last temptation

If Chief Justice Roberts wanted to protect the Court from being regarded as political, he should have been less transparently political in his motivation.

The consensus among those entitled to express an expert opinion – a class that does not include me – appears to be that Chief Justice Roberts not only wanted and intended to strike down the individual mandate but actually voted to do so before changing his mind.

I have seen no one claim that this resulted from Justice Roberts’s sudden appreciation of the merits of the “if it looks like a duck” argument that the mandate should be construed as a tax. His motive is universally assumed to have been institutional: to prevent the hardening of the perception that the Supreme Court is simply the least democratic and transparent of three political branches of government.

If that is the case, it seems to me that he outsmarted himself. If the Court is to be respected as a court, then it must appear that its members are  practicing jurisprudence and not mere politics: that they decide cases according to the law, rather than simply taking positions on issues. But does anyone believe that about what Justice Roberts did today? No one that I know of.

So in trying to avoid the perception that the Republican majority on the court acts purely politically, the Chief Justice made it obvious that he was acting purely politically. Even if you think that upholding the mandate was the right deed, doing it so transparently for the wrong reason vitiated its intended benefit.

I think the technical term is “own goal.” And no, it doesn’t make me happy. Judicial review is one of the great American constitutional innovations, and the last thing the country needs right now is to have one more major institution fall into public contempt.

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:

44 thoughts on “John Roberts and the last temptation”

  1. Parallels with the Fed – is Ben Bernanke refraining from taking radical quantitative easing measures (such as the ones he urged on Japan when he was in academe) because he doesn’t think there’s enough political support for it? And on the other side of the Atlantic, are unspoken political constraints binding the ECB?

    Incidentally, the RBC RSS feed hasn’t been updated since May 24 – someone should look into this.

    1. Basilisc,
      We’re working on this. In the mean time, I recommend subscribing to the “subscribe to excerpts” option.

  2. One data-free speculation I’ve not seen aired is that Justice Kagan got to Roberts. After all, inside baseball is what she’s good at, and why she was appointed.

    1. Another charitable explanation is that what ended up as the dissent went well beyond what Roberts thought had been agreed to in conference. Although Kennedy read the dissent (or portions of it) from the bench, most people seem to detect Scalia’s hand in it. Scalia has been known to take extreme positions.

    2. My understanding (which I haven’t had time to confirm) is that Kagan doesn’t regard the fine as a tax. So if she won Roberts over, she did so by persuading him to adopt a view that she herself doesn’t hold.

      1. We are definitely getting into 11-dimensional chess conspiracy theory here. But in defence of it, Roberts only gets to the tax position as an interpretation which will, faute de mieux, make ACA constitutional, showing a deference to Congress long discarded by Scalia et al. The 4 liberals aren’t in that position because they uphold the mandate under the Commerce Clause, making the tax issue moot. So “Kagan” could have made the tricky argument without falling into legal self-contradiction.

  3. = = = Judicial review is one of the great American constitutional innovations, and the last thing the country needs right now is to have one more major institution fall into public contempt.= = =

    I’m afraid that ship sailed the day the Federalist Society was formed. An organization specifically designed to carry out a 30-50 year plan to stack an institution with radicals, and given infinite funding and unswerving support from one of the two political parties now cemented into our electoral system to do so, wasn’t likely to lead to a good outcome. Nor is it likely that their efforts can be reversed, given the inclination of the last two Democratic Presidents to select very conservative Democrats as justices.


    1. I think that ship sailed when the Warren Court overturned the previous 2 centuries of jurisprudence.

      1. Some jurisprudence deserves overturning. Surely you agree with that, if for different cases than I.

      2. To what do you refer? I checked the Wikipedia article (glanced at it, really) to make sure the most famous moves of the Warren Court were the ones I remembered. I don’t recognize all of the significant cases named, and didn’t take the time to click the links, but the ones I did recognize offhand were: Brown v Board, Loving v Virginia, Miranda, New York Times Co, and Griswold v Connecticut. In order, then: Separate Is Unequal, The Fourteenth Amendment Lives, Cops Must Dot Their Is, No Prior Restraint Of The Press, and A Right To Control Your Own Body. These cases were momentous, and tranformative, and important – but how many of them are really controversial today? Miranda, maybe: every year of three the current court chips away at it. But after a half-century of television dramas, we’re all pretty used to the idea that you have a meaningful right against self-incrimination, and a right to legal advice when you’re in real trouble. Similarly, Griswold has amazingly come under attack in recent months. But in both cases these seem to be political oppotunism and rabble-rousing, not principled objections to the decision-making process of the Warren Court.

        1. I’d say the key cases are Baker vs Carr, Reynolds vs Sims, Abington Township vs Schempp, Eisenstadt, and Terry; the combined effect was to make the states functionally agents of the Federal governmet.

          1. Dude, really?
            Baker v Carr and Reynolds v Sims (and Wesberry v Sanders) basically just mean that the courts will in extremis enforce the notion that “Democracy isn’t just a good idea – it’s the law!”. All these rulings appear to do is say that Rotten Boroughs are impermissible. It’s embarrassing that these cases made it all the way to the Supreme Court, and it’s inconceivable that the ruling wouldn’t say that One Cow One Vote was against the Constitution. Heck, as far as my very superficial look at the Wikipedia pages suggests, they don’t even have to do with the thorny issue of the interaction of the Civil Rights Act with Redistricting – that at least could gin up some controversy
            Abington is just “no state establishment of religion” (Teacher can’t preach the Bible to kids), Eisenstadt is just more Griswold (contraception for unmarried people, not just married people), and Terry is if anything a retreat from Miranda, one that frees up the local law-enforcement to search people, not one that imposes new federal rules on them.

            None of these rulings seem the slightest bit controversial, none go beyond the most basic understanding of the strict letter of the Constitution (except perhaps Eisenstadt, which is just applying the 14th Amendment to Griswold), and none meddle in the lives of local authorities (except perhaps to demand that they hold fair elections). I honestly don’t have the slightest idea where you’re coming from.

          2. If memory serves, you have previously stated disagreement with much of the 20th century supreme court jurisprudence. Warren Court may just be the most such for you.

      3. I disagree with you about the Warren Court too, like Warren Terra, but I do agree with you that there is a worrying amount of talking-past-each-other happening. For example, I have a libertarian friend who often complains about taxation being theft, and yadda yadda yadda, seemingly unaware that he lives in a democracy which has had taxation since Day One, and enshrined in its own amendment now to boot.

        But someone has told him that he has some inherent right to live tax free, and that every thing the government does that he doesn’t like equals oppression. It’s quite bizarre, and this kind of basic misunderstanding of history and reality is, I agree, bad for the country. I don’t understand how people get out of high school still believing this kind of lie.

        1. I don’t either. I also don’t understand how people I consider to be fairly intelligent and literate, who use the Internet at least semi-regularly and have easy access to factual information continue to believe every fact-free and wildly spun email and Fox and Rush broadcast they see. I’m no computer whiz and I can look up anything and figure out what I think is (mostly) the reality of what happened with reasonable ease. What is truly daunting is that if you have the audacity to actually provide these people with multiple factual sources that disagrees with their completely uninformed opinions, they don’t believe them, regardless of how many you cite for them!

          Sorry for the rant, can you tell my hot button was pushed?

  4. Roberts’ opinion really is an odd piece of work. He concurs with the wacko-right theory of the commerce clause, but unlike eight other justices, he holds that the fine is properly regarded as a tax. Is there a plausible case that he’s acting on judicial principle? I don’t see it.

    It looks to me as though he wanted to push the court as far as possible to the right without directly defying Congress and risking a backlash. I freely admit, though, that this is a pretty unsatisfying explanation. I was stunned by the way this played out, and still can’t really account for it.

    1. I can understand having differences of opinion on the meaning of the Commerce Clause and how far it goes, but I fail to see how the view that the Commerce Clause does not give unlimited powers to the federal government should be considered a wacko-right theory.

      1. “but I fail to see how the view that the Commerce Clause does not give unlimited powers to the federal government should be considered a wacko-right theory.”

        From what I can tell, it’s because that view is waived whenever the ox being gored is beloved by the right.

        1. What’s your basis for saying everyone else disagrees with the taxing power argument? Everyone in the majority signed on to it, right?

      2. The problem is not the limits on the Commerce Clause as such. The problem is Randy Barnett’s inactivity/activity distinction. As Brian Beutler at TPM put it, “[t]he challengers’ case rests on a legal theory hatched explicitly to achieve a political end.”

        You may think that this is an overstatement, but the way this theory was constructed was by parsing existing Supreme Court decisions in ways that they were most likely never intended. The usage of “activity” as a noun in those decisions is largely filler to complement adjectives that can’t grammatically stand on her own, not really anymore of a signifier than “stuff” or “whatchamacallit”. Now, “activity” got repurposed as having a far more specific meaning.

        That does not mean that this repurposing wasn’t brilliant. The genius of that theory was that it offered the conservative justices a way to limit the Commerce Clause without having to overturn existing precedent. In the end, however, it failed its purpose. It was narrowly tailored towards defeating the individual mandate, and the mandate was upheld under Congress’s taxing power. It is very unlikely to have a significant effect on future legislation, as Congress is now aware of it and will avoid tripping over the activity/inactivity distinction, not to mention that mandates (as opposed to prohibition) are fairly rare in Commerce Clause legislation to begin with.

        All that aside, the theory still largely depends on a linguistic trick at its core, not what I’d call thorough judicial reasoning. It’s a substantive due process argument dressed up in Commerce Clause garb (and an SDP argument would fail, because it would also work against the states, but it is generally accepted that the states can impose a mandate by way of their plenary police power).

        In all fairness, the conservative justices (as well as some other legal scholars) did improve upon the inactivity/activity theory by refining it. They asked, “can Congress compel commerce in order to then regulate it”? This is a reasonable question, and finding that it cannot be done under the Commerce Clause does not strike me as particularly lacking in judicial rigor (though I think that Ginsburg’s opinion still has the better answer). The problem then, however, becomes why the mandate isn’t constitutional under the Necessary and Proper Clause. Even the dissent seems to agree that under existing precedent the mandate is necessary to the structure of the PPACA (by claiming that without the mandate, the law would have to be struck down in its entirety) [1]. But when you get to why the mandate is supposedly improper, both Roberts’s opinion and the dissent start engaging in some fairly vigorous handwaving.

        This is particularly perplexing with respect to the argument that Roberts makes. If the mandate is a constitutional exercise of the taxing power, how on earth can it, under the Necessary and Proper Clause, be at odds with the spirit of the constitution? A constitutionally valid exercise of one of Congress’s enumerated powers might be unnecessary and might make the invocation of the Necessary and Proper Clause superfluous, but it cannot possibly be improper.

        [1] The dissent gets around this problem by throwing out a couple of centuries of precedent and redefining what “necessary” means, going from a rational means-end test to a requirement that necessary means “there are no possible alternatives” (p. 10 of the dissent).

  5. My own view is that the Roberts opinion was singularly brilliant, doing what the Court has traditionally done (searching for the narrowest grounds on which to rule) while staking out important principles of Federalism that are likely to be seen as significant as the Court’s early cases that established judicial review. By finally enunciating a limiting principle concerning the commerce clause, he has likely ended its 80 year expansion (and to all those who belittled my expectation regarding the commerce clause and this case, I hate to say I told you so, but…I told you so). The medicaid ruling provides the wherewithall for states to maintain a degree of sovereignty and resist the imposition of an overreaching Congress. In the end, these are much more significant than his finding a means to allow the individual mandate.

    With respect to that, I would have loved to see the whole law overturned if for no other reason than that its advocates have misrepresented it from day one, including their insistence that the tax was not a tax. The “gift” Roberts gave them yesterday will prove to be a tar baby since it will now be clear to independent voters that Obama broke his campaign promise regarding middle income taxes when in fact, the people who will continue to be uninsured and have to pay the tax (net of any offsetting tax credits for lower income people in PPACA) will be precisely those between poverty level and 133% of poverty level in those states that choose not to expand medicaid (really, how many upper income people do you know who are uninsured?). I am only sorry that the four other justices on the Right could not see the value of this decision and fully join the opinion, wherein these points would be even more clear to the public.

      1. Funny how that term always seems to jump into some people’s mouths when they are discussing Obama…

      2. The idea that “Tar Baby” is a slur is controversial; I encountered the term for many years in its original, literary meaning from the most racially progressive of people without any idea that using it could signal racist ideas or intent. There is a racist meaning to “tar baby” but it is I think separate, it doesn’t have any connection to the notion of an attractive and beautiful thing that turns out to be an inextricably sticky trap, being instead a simpler slur about an infantilized human being composed of a repugnant toxic black oily substance.

        Now, the term clearly is interpreted by many people as being racist, and gives offense, and should be avoided for those reasons (though I don’t offhand know of an equally good substitute to convey the meaning that was intended). But I’m confident that Redwave, and for that matter John Kerry and John McCain and many other users of the term, had no inkling that their use of the term might have the slightest offensive racial overtones when they used it.

        1. Serbonian bog? Too hifalutin, perhaps, but it does much the same thing as “tar baby.”

        2. Last year the company I work for added a very sharp and talented individual to the staff. He was available because in his previous job he had referred to a proposed project as a potential “tar baby”, and was asked to resign after someone complained to HR. The misinterpretation of what he meant sure took him by surprise. Their loss, our gain.

          1. His loss, too, sadly. Hopefully your company is a better place for him, and consistent with his long-term goals, but the experience must have been traumatic and disruptive for him.

            A lot of what is derided as “PC” is simple politeness: I’d try to avoid using the terms “Tar Baby” and “Niggardly” because I have no wish to cause offense, even though I know that correctly interpreted and understood they are not in the slightest offensive. But, sadly, some part of “PC” is genuinely hypersensitive people who leap at every opportunity to concoct outrage where none really should exist, and to condemn it as inexcusable without seeking explanations.

    1. I disagree strongly with Redwave’s second paragraph, but his first paragraph is mostly–uh–“right.” Roberts’ opinion was brilliant and does stake out a federalist position long-sought by the Federalists. I disagree with Redwave in one respect: Roberts did not seek out the narrowest grounds on which to rule. If he had done that, he would have deliberately skipped the commerce clause argument (while noting its existence), and decided the case on the tax grounds. Roberts did a magnificent job of playing judge, but the real game for him was right wing politics. His opinion was world class kabuki.

      Two other points responsive to Redwave’s second paragraph. First, if the other four Right-wing justices had concurred with Roberts, the opinion would have lost much of its exoteric credibility. Roberts’ goals were best-served by the 4-1-4 posture of the case, or perhaps a 4-2-3 with Kennedy. This preserves the institutional legitimacy of the court–and Roberts’ reputation as an “umpire”–much better than siding with Scalia & Co. From my perspective, this is akin to the East German judge giving the worst Soviet-bloc skater a “3”, so s/he could better hand out “9s” and “10s” to all the rest and “7s” to the top US skaters.

      Second, I avoid terms like “tar baby” or “niggardly” out of caution. I’ve lived through the 1960’s and 1970’s, and I know that there are a lot of jackasses who will take these terms in bad faith as per se evidence of coded racism. (H, I mean you.) There is no supporting context for such an accusation in Redwave’s post, except that Redwave is clearly on the political right. And that’s not enough context. The right wing might be hospitable to racists, but by no means is every member of the right a racist. George Bush, for example, clearly believes that every petroleum billionaire is created equal, without regard to race, creed, or color.

      1. Dear Eb,

        Guess you didn’t bother to look the two cites I provided.

        If it quacks with racist terms it sure sounds like a racist duck.

        As the linked to Wikipedia article says: “The Oxford English Dictionary defines “tar baby” as “a difficult problem which is only aggravated by attempts to solve it”,[7] but the subscription-only version adds a second definition: ‘a derogatory term for a Black (U.S.) or a Maori (N.Z.’.”

        Note to redwave72–Don’t use racist terms and you should be okay.

        1. Both of your references say that it is *not* generally viewed as a racist term but that *some* do think it is. Kind of like “niggardly” for stingy. Both references say that the metaphor came out of West African folklore, which makes it hard to sustain a racist interpretation. What you’re really saying is that some peoples’ lack of literary knowledge means we must use an impoverished language, lest we give unintended offense.

          1. I’m fine with making compromises to avoid unintentional and unnecessary offensiveness. But H seems to be doubling down on the idea that “Tar Baby” is not merely a term to be avoided because some people hear it as evincing racism, but is in fact incontrovertible proof of racist intent. This is not only wrong, it is unkind and, yes, offensive to Redwave and to others who use the term in good faith and with no racial implication intended.

          2. Dear Boondoggle,

            so, it’s okay to use a racist term if your heart is (later on) said to be pure?

            You will, perhaps, be happy to know that there are those who agree with heart is pure idea. including that paragon Michele Bachmanm

            Don’t use racist terms, don’t be thought a racist–even one who claims to somehow have a pure heart.

            To those who claim their pure hearts exempt them from being called on their racist phrasing, I say, hooey.

            Again, don’t use offensive language and you should be okay.

    2. “By finally enunciating a limiting principle concerning the commerce clause, he has likely ended its 80 year expansion”. Since not a single justice joined the Chief Justice’s opinion regarding the commerce clause, this enunciation has no precedential value, does it?

      1. None of the concurring justices did, but the dissenters did, so it’s a different 5-4 I believe. So it should have precedential value. So that’s how Roberts comes to write for the Court(other than that he assigns that job as Chief). he represents the majority on the Commerce Clause (with the dissenters), the majority on the taxing power (with the concurrences), and a 7-2 majority on the Mdicaid expansion. Effectively, he is the only judge in the majority on all three issues.

        1. No, Redwave72, you’re simply wrong. None of the dissenters joined any part of the Chief Justice’s opinion, not on the commerce clause, not on the Medicaid expansion, no matter how much they may have agreed with these parts of the opinion. Go look it up. Roberts delivered “an opinion” on the commerce clause issue in which no one joined, not the opinion of the Court.

          1. I don’t know anything about how decisions work and how the votes are counted. Maybe this decision, with five (separated) votes to utterly emasculate the Commerce Clause, does not qualify as a precedent usable by any lower court, because the five similar viewpoints about the Commerce Clause were split across opposite sides of the issue. Nonetheless, it’s pretty clear that the next time Roberts, Scalia et al feel the outcome is sufficiently salutary they’re perfectly ready to wipe out the New Deal.

          2. Warren Terra: You are unfortunately almost certainly correct. (Reminds me of a line from Brecht: “Da hat er eben leider recht.”

            But who voted for what is made very clear in the official publication on the Supreme Court’s website. You don’t need to be a lawyer to understand it (and I’m certainly not one).

    3. Redwave: So the several million fairly poor households, who will be deprived of the Medicaid that ACA would give them by Republican governors and state legislatures out to spite Obama, will blame Obama not the state governments? Especially as they will see similar households in other states like California and New York enjoying precisely that expansion.
      Is it true that people in this position will have to pay the fine/tax? I was under the impression that it was aimed at people over 133% of the poverty line, to push them in to buying policies on the exchanges. The new donut hole is bad enough, but SFIK it’s just a hole, without piranhas.

      1. In practice you may be right but it’s unclear to me whether the tax credits will fully offset the tax at that level of income. They might. Even so,the promise is still broken with respect to middle income payers (up to 200,000), that’s for sure.

        As for whom people should blame for not participating in the expanded medicaid, they can blame the President, their Governors or the Constitution. Whoever they choose to blame, this will be a political issue, like PPACA itself. They should vote against whatever rascal(s) they choose to blame next time out.

        On the other hand, there are lots of people buying coverages like Long Term Care just to avoid being thrown to the tender mercies of the Medicaid system. I would be concerned that a really expanded Medicaid system will ultimately reperesent the lower tier of a two-tiered medical delivery sysem. The PPACA debacle should encourage the wiser thinkers among us to dwell on the question concerning whether we have spent too much time and energy on the funding options for medical care (through insurance solutions) and not enough on how we think medical care itself could best be delivered.

  6. politicalfootball: The “wacko-right theory of the commerce clause” is not that it should be limited, but that it should be stretched and contracted as necessary to serve a “conservative” political agenda. No restraint of the Commerce clause was evident in Raich, which outraged even that doctrinaire, silent conservative Clarence Thomas. If you wish to see Roberts as calculating, consider that he might regard letting “Obamacare” fly is a reasonable right-wing political decision: in reality (despite the Tea Party rhetoric) it’s based on sound conservative proposals dating back to the 1990s, it hardly amounts to a government takeover of health care, and yet it’s still a potent political issue for the GOP regardless of whether or not it’s constitutional. Declaring it so does not detract from its usefulness as a Romney issue in the fall.

  7. This post is only half right. Among legal scholars Roberts may take some hit for making the right decision on the wrong grounds. In Washington, however, Roberts increased his prestige by favoring the prestige of the institution over his party’s goals. This is still politics, but it isn’t partisanship and in DC, that’s the most noble of all choices.

    1. I agree. Roberts probably wasn’t going to convince anyone that the court is completely apolitical, but he did show that the court isn’t completely in the pocket of the political right wing.

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