In Defense of Chief Justice Roberts
The U.S. Supreme Court
My Facebook and Twitter feeds today are exploding with information about the Supreme Court’s latest ruling on the Affordable Care Act. My liberal friends are rejoicing that the Supreme Court recognized the “right” of people to have healthcare, and my conservative friends are vilifying the Court for its blessing of unprecedented Federal expansion and movement towards “socialism.”
A lot of the latter group’s frustration has been directed at Chief Justice Roberts. Roberts was the swing vote in the case, with the 5-4 decision including Roberts, Sotomayor, Ginsburg, Kagan, and Breyer in the majority and Alito, Scalia, Thomas, and Kennedy in the dissent. Conservatives were hoping that Roberts, a Bush nominee, would side with conservatives. Sotomayor, Ginsburg, Kagan, and Breyer were virtual certainties; Kennedy was largely thought to be the swing vote. Roberts’ joining of the majority is being interpreted as a stab in the back to the conservative cause.
That’s a pretty narrow way of looking at the issue, and stems from an ignorant understanding of true conservatism. It is the type of willful stupidity that mars our politics with the dirty word “partisan,” sacrificing Constitutional requirements in deference to ideological loyalty. The opinion from Chief Justice Roberts is a conservative victory for two distinct reasons. First, it does not at all afford unprecedented powers to the Federal government, and even limits them in application of the mandate. Second, and even more importantly, Chief Justice Roberts’ refusal to consider or even approach the question in a partisan manner is a textbook model of what a Supreme Court Justice needs to do.
It is important to note that Chief Justice Roberts’ opinion, though paralleled by a concurring opinion authored by Ginsburg, is the controlling opinion. That’s important because it is the controlling opinion that is actually binding, and its dicta is most heavily weighed for future precedent. In the opinion, Roberts flatly denied the Government’s notion that the mandate is permissible under the Commerce Clause:
The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.
Of course, Ginsburg’s concurring opinion expressed wholesale support for the Commerce Clause argument. Roberts’ authorship of the majority opinion renders this interpretation inconsequential, instead stamping out the Government’s argument that its proposal is wholly permissible under its statutory powers in the Constitution. Roberts instead requires that the Government call the mandate what it actually is: a tax. While today’s conservatives loathe the ACA legislation, let’s not forget that they haven’t always hated the idea. There was significant talk in the 1990s–with strong bipartisan support–of a healthcare mandate. Republicans are of a different mind today on the issue of health insurance, but conservatives have always hated the idea of Federal officers exceeding the Constitutional boundaries of their political offices. That’s exactly what Chief Justice Roberts did not do, which is why this is a conservative victory (albeit not necessarily a Republican one).
Many nominal conservatives wish that Chief Justice Roberts had been partisan in his administration of justice, striking down the law simply because it is a bad law. He is upfront in the very beginning of his opinion, noting that he would do no such thing:
We do not consider whether the Act embodies sound policies. 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.
This may be all well and good, some might add–but isn’t there a law higher than the Constitution? In fact, intellectual tradition within Conservatism acknowledges that there is a higher law, but does not concede that statesmen under oath to a lesser law can simply appeal to the higher one as they wish. Russell Kirk, in his famous treatise Rights and Duties, reminds his readers of William Henry Seward, a U.S. senator in the mid-19th century. Speaking in March of 1850 on the cause of abolition, Seward remarked that there is “a higher law than the Constitution.” Kirk points us to Orestes Brownson for the conservative response:
Mr. Seward had no right, while holding his seat in the Senate under the Constitution, to appeal to the higher law . . . after having taken his oath to support the Constitution, the Senator had . . . settled the question . . . No civil government can exist, non is conceivable even, where every individual is free to disobey its orders whenever they do not happen to square with his private convictions. (Spence Publishing Company, 1997, pg. 133)
Gone is the concept of civil disobedience. Gone is Seward’s direct appeal to supra-Constitutional authority for relief from civil authority. For those who dislike the edicts, ordinances, and laws that are conceived and executed within the confines of the Constitution, there is a valid recourse to change: elect different leaders. That is a major tenet of conservatism that we’re forgetting. Libertarianism isn’t conservative. Conservatism isn’t atomistic. It relies on a coherent order; American conservatism rightly relies on the American order. This is an order that Justice Roberts is protecting. He may not like the legislation, but he understands his role:
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices. (pg. 6)
That is conservatism at is finest. That is ordered liberty.
Your analysis depends on one critical (undefended) assumption: that the mandate is actually a tax. Upholding the law as a tax when it’s not just to create the appearance of impartiality is not “conservatism at its finest;” and nothing in conservative philosophy or legal theory supports it.
Consider Casey v. Planned Parenthood, where it is well known by now that Justice Kennedy switched his vote (essentially) to uphold Roe v. Wade. Your article here leaves you little if no room to criticize him. Natural law may prohibit abortion, but that shouldn’t guide a justice. If Roe were overturned, people would call it a “partisan” decision; the legitimacy of the judiciary was at stake. Kennedy is Catholic and a Republican, but religion and politics shouldn’t control; he must be impartial. The “original meaning” of the Fourteenth Amendment didn’t include a right to abortion, but you seem to have dispensed with that notion here – this mandate could not have survived the “original meaning” of tax. And unlike Roberts here, who had a case of first impression, Kennedy had controlling precedent directly on point to contend with. Indeed, he had *more* reason to rule in Casey than Roberts did here. By your standards, Casey is a great conservative victory. I doubt you would call it that because you feel strongly about abortion, but there’s no principled difference.
Here’s my point: we need to get out of our heads this silly idea that whenever a Republican appointee upholds Democratic legislation (or strikes down Republican legislation) it is a victory for impartiality and intellectual honesty. It *may* be such a victory, but only if the constitutional rule is property discerned and applied. I.e., while your friends may be wrong to criticize Roberts automatically because they don’t like Obamacare, it is equally wrong to praise Roberts automatically because members of his political party don’t like the law.
Your argument here makes that error: your only relevant analysis is on the commerce clause (which is likely *not* controlling precedent but merely dictum b/c it was not essential to decide the commerce issue and only Roberts joined that part of his opinion). But there is nothing about here why his tax arguments are so worthy of praise. Why doesn’t it matter that it wasn’t structured as a tax? And wasn’t designed to raise revenue? And was repudiated by the president and members of congress as a tax? And even if it was a tax, why isn’t it an unconstitutional direct tax? Even the legal scholars who thought the government would win on the commerce clause thought the tax argument was a loser. Without defending Roberts on those points, you haven’t made a defense at all. Even if his error wasn’t an error of policy or politics, his decision (if critics are correct) enshrines principles counter to the constitution into the law of the land. That’s not a conservative victory at all.
Zach,
I must respectfully disagree with your praise of Justice Roberts. First, the commerce clause section is not a significant legal victory. There are four reasons for being skeptical of the future legal value of Justice Roberts’ opinion. 1. The commerce clause section is dicta, as no other Justice joined that part of the opinion. There is no greater weight given in lower courts to dicta in “controlling” opinions than to dicta in dissenting or concurring opinions. 2. The limit on the commerce clause that Justice Roberts so elegantly stated only applies to uses of the commerce clause to compel someone to participate in commerce. As everyone now admits, Congress had never before used the commerce clause in this way. Justice Roberts decision is highly fact-dependent. 3. Justice Roberts did not cut back on any of the existing commerce clause decisions, so it is hardly earth moving. 4. In the unlikely event that Congress were to try and create commerce in the future, we now know that it can be upheld as a tax, even if Congress adamantly denies it is a tax. Thus, the chance that Justice Roberts commerce clause analysis, however sound, has any traction in any future challenge to Congressional power is almost nill.
Second, as to the non-partisan point, I think your argument suffers from a huge assumption that the dissenters were somehow motivated by partisan concerns. Nothing in the dissent supports that view. If that is the case, we have two different non-partisan legal opinions, that of Roberts and that of the four-Justice dissent. Which is the correct view of the Constitution?
Justice Roberts’ tax analysis is offensive to true conservative notions of judicial review. Justice Roberts himself admits trice in the opinion that it can only be considered a tax by adopting a reading that is “not natural” to the law. The dissenters are persuasive in showing that Justice Roberts did not just “read” the law differently, he rewrote the law. That type of judicial activism is not conservative. Justice Roberts all but apologizes for reading the law in the highly unnatural way to get to the end-result of declaring it to be a tax. Raise your hand if you read the statute and think it is reasonable to say, “there is actually no mandate.” That is what Justice Roberts asks us to do. It is a mandate-with-penalty, and there is no way to avoid the truth of the matter.
It is not conservative to abdicate the duty to enforce the Constitution. All politics aside, that is the serious objection of the dissenters, and it is persuasive. Justice Roberts ought not be praised for this legal work. It is neither sound constitutional law nor sound conservative jurisprudence.