[HNN, which carried my post on Charles Evans Hughes when it originally appeared back in
April, offered to send it out again if I added a introduction in light
of the NFIB v. Sebelius. Here it is.]
I'm
not going to pretend that I know exactly why Chief Justice John Roberts
left the four other Republican appointees on the Supreme Court and
joined the four other Democratic appointees to uphold the individual
mandate in the Affordable Care Act--after all, after seventy-five
years, we still don't know exactly why Chief Justice Charles Evan Hughes
broke with the four implacably conservative members of his Court and,
bringing Owen Roberts with him, joined three liberal justices to uphold
landmark New Deal legislation. Still, I would be very surprised if
Roberts was not moved by the same concern for legitimacy of the
institution over which he and Hughes have presided. Although he could
not bring Justices Alito, Kennedy, Scalia or Thomas with him, he
nonetheless avoided what Jeffrey Rosen of the George Washington
University Law School called on Thursday’s Diane Rehm Show “the kind of
partisan, polarized, five-to-four, Republicans-versus-Democrats” outcome
that was the great “fear of many people who care about the bipartisan
legitimacy of the Court.”
Roberts, no less than Hughes, has had a life “spent in work conditioned
upon respect for the courts.” He clerked for two eminent federal
judges, Henry Friendly and William Rehnquist, he worked in the Solicitor
General’s office; he became one of the leading Supreme Court advocates
of his generation while at the law firm of Hogan & Hartson, and he
served on the U.S. Court of Appeals for the District of Columbia
Circuit. While his nomination as Associate Justice was pending,
Rehnquist died, and President George W. Bush named him to succeed his
judicial mentor as Chief Justice. After his confirmation, Roberts told
Rosen, in an interview published in The Atlantic, that in times of great
political division, “[t]here ought to be some sense of some stability,
if the government is not going to polarize completely. It’s a high
priority to keep any kind of partisan divide out of the judiciary as
well.”
In his opinion in the ACA case, Roberts seemed intent on redirecting the
tidal wave of partisan controversy bearing down the Court back toward
Congress and the White House. “We do not consider whether the Act
embodies sound policies,” he wrote. “That judgment is entrusted to the
Nation’s elected leaders. We ask only whether Congress has the power
under the Constitution to enact the challenged provisions.” In the same
expansive tone, he reassured Tea Party Patriots and other devotees of
the Tenth Amendment that although “Obamacare” was the law of the land
they still lived in a country where “the National Government possesses
only limited power” and “the States and the people retain the
remainder.” Upholding the individual mandate under the Commerce Clause
would not have been comforting, because the argument that individuals
who refused to buy health insurance were engaging in commerce opened, as
Roberts wrote, “a new and potentially vast domain to congressional
authority. Every day individuals do not do an infinite number of
things.” The “little tax power argument that could,” as its most
prominent proponent, Jack Balkin of the Yale Law School calls it, will, I
think, prove to be a far less controversial justification.
I don’t doubt that today’s Frankfurters will find much to wretch over in
the decision. Already law professors have observed (for example, here and here) that, when
combined with the votes of the four dissenters, Roberts’s rejection of
the Commerce Power moves the Court further from the position that it
gave Congress plenary power to regulate, which prevailed between Wickard
v. Filburn (1942) and United States v. Lopez (1995). His dismissal of
the Government’s second argument–that the individual mandate was
“necessary and proper” to the regulation of the insurance industry–also
troubles some, because the Court has never before treated the word “proper” as a
substantive limitation on Congress. Even his discussion of tax power
is concerning, for Roberts wrote that Congress’s use of it “to influence
conduct is not without limits” and supported the proposition with cases
that predated the so-called Constitutional Revolution of 1937.
That Roberts’s captured some new terrain in the ongoing battles of
constitutional lawyers strikes me as less important than what he did
when he realized that the war for judicial independence was in the
balance. Whether in conference, held shortly after the argument in late
March, or, as some close readers of the dissenting opinions suspect (here and here),
sometime later in the justices’ consideration of the case, Roberts acted
to preserve the legitimacy of the Supreme Court. Hughes would have
understood and approved.
