Still, by letting Obamacare survive in such a dubious manner — I call it a “unicorn tax,” a creature of no known constitutional provenance that will never be seen again — Roberts undermined the trust people have that courts are impartial arbiters rather than political actors.
To put it another way, having filed 10 amicus briefs (four in the Supreme Court), written dozens of articles and blog posts, engaged in more than 100 public debates, and attended all the appellate arguments — in the circuit courts in Richmond, Cincinnati, Atlanta, and D.C., as well as at the Supreme Court — I thought I knew what to expect. In my early writings, I had predicted that the Court would either strike down the law or find some procedural way (such as standing, ripeness, or the Anti‐Injunction Act) to avoid ruling on the merits and thus allow it to stand. I was nevertheless gobsmacked to hear the chief justice hand the government a bottom‐line victory while neither expanding federal regulatory power nor dismissing the case on some technicality.
I never thought I could feel so empty (still!) after having Court majorities offer such ringing endorsements of my theories (and not mine alone) on the Commerce, Necessary and Proper, and Spending Clauses.
What had I (and everyone else) missed? The possibility that the ruling would be based on something other than competing legal theories. That is, eight justices decided the health care caseson the law — four finding that the Constitution limits federal power, four that constitutional structure must yield to “Congress’ capacity to meet the new problems arising constantly in our ever‐developing modern economy” — and one had other concerns on his mind.
What bothers me isn’t that Roberts changed his vote — judges do that regularly, and no ruling is final until issued — but instead that his tax section simply doesn’t compute. Even Justice Ruth Bader Ginsburg, who expressed skepticism about the taxing‐power justification during oral arguments, was quizzical about Roberts’ theory in orally summarizing her partial dissent on behalf of the no‐limits‐on‐federal‐power bloc.
The regrettable inference to draw is that for a combination of faux judicial restraint — how is it restrained to rewrite the law? — and reputation‐protection, Roberts decided that he needed to uphold the law while not expanding federal power. He succeeded in squaring that circle, but we’re left with a ruling hinging on a head‐scratching tax on inactivity: a piece of legislation no Congress would ever have passed.
The sad thing about this episode is that the chief justice didn’t have to do what he did to “save the Court.” For one thing, Obamacare has always been unpopular — particularly its individual mandate, which even a majority of Democrats in a national poll thought was unconstitutional. For another, he only damaged his own reputation by making this move after warnings from pundits and politicians that striking down the law would be “conservative judicial activism.” I don’t think that impolitic pressure had anything to do with his ultimate decision, but the American public certainly does.
Most importantly, the whole reason we care about the Court’s independence and integrity is so it can make the tough calls while letting the political chips fall where they may. Had the Court struck down Obamacare, it would have “merely” been a high‐profile legal ruling, just the sort of thing for which the Court needs all that accrued respect and gravitas. Instead, we have a strategic decision dressed up in legal robes, judicially enacting a new law.
But what was Roberts saving the Court for if not the sort of big once‐in‐a‐generation case that thisexemplified?
I’m reminded of the 1966 film A Man for All Seasons, in which an ambitious young lawyer named Richard Rich perjures himself so that the Crown can secure Sir Thomas More’s conviction for treason. Rich is promoted to Attorney General of Wales as a reward. Upon learning of Rich’s connivance, More plaintively asks, “Why Richard, it profits a man nothing to give his soul for the whole world… but for Wales?”
Well, in refraining from making that hard balls‐and‐strikes call he discussed at his confirmation hearings, John Roberts sold out the law for less than Wales — thereby showing why we don’t want our judges playing politics.
Georgetown law professor Randy Barnett, the intellectual godfather of the Obamacare litigation, summed up my current feelings at Cato’s Constitution Day conference in September:
“Now we will have an election to decide the ultimate fate of Obamacare. But this election will also be about who gets selected to serve on the Supreme Court. Should Republican presidents continue to nominate judicial conservatives who are enthralled with New Dealers’ mantra of judicial restraint, or should Republican presidents nominate constitutional conservatives who believe that it is not activism for judges to be engaged in enforcing the whole Constitution. All future nominees should be vetted not only for their views on the meaning of the Constitution, but for their willingness to enforce that meaning. For over two years, our nation was given a great lesson on constitutional law — that the enumerated powers are limits Congress cannot exceed. In June, the electorate was given a different lesson in judicial philosophy: Judicial restraint in enforcing those limits is no virtue. In November and beyond, we will see just how well those lessons were learned.”
I’m still not over the Obamacare ruling, but perhaps this election will help me heal.