Friday, June 29, 2012

"My Whole Life" Redux

[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.

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