Why chief justice sided with Obama
Chief Justice John Roberts is not very popular among law professors. That’s partly because most of us are liberal and simply disagree with him ideologically. But it goes deeper than that. The bigger knock on Roberts has been that he’s a hypocrite.
At his confirmation hearing back in 2005, he emphasized judicial modesty — but as a justice, he has voted to invalidate school desegregation plans and local gun laws and has prevented Congress from regulating corporate campaign spending in the divisive Citizens United ruling. For many, Roberts is the Manchurian Chief Justice, smiling for the cameras as he secretly prepares to overturn decades of progressive law.
And yet yesterday, to the dismay of the entire Republican political establishment, in the most closely watched Supreme Court case since 2000’s Bush v. Gore, four months before a close presidential election, Roberts provided the decisive vote to uphold President Obama’s signature legislative achievement, the Affordable Care Act. The critics owe Roberts a beer.
It is not just that his detractors may have been wrong about Roberts personally. It is also that, in so strongly suggesting that there really is a difference between law and politics, Roberts has lent credibility to the very study of constitutional law. Just before this case was decided, Yale Law School Professor Akhil Reed Amar told Ezra Klein that if the court strikes down the mandate 5-4, “my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party and party loyalty.” Amar can sleep better tonight.
Probably. In the coming days and weeks, you are likely to see arguments claiming that Roberts is just playing 11-dimensional chess. They will suggest that he merely handed Democrats and progressives a Pyrrhic victory, part of a grand Machiavellian scheme to achieve long-term conservative goals.
Some may argue, for example, that by labeling the individual mandate as a tax, he allows Republicans to score points against Obama, who promised not to raise taxes on the middle class.
Or they may argue that upholding Obamacare gives Roberts political cover for striking down campaign finance laws in the Citizens United decision, or for forthcoming decisions that may invalidate affirmative action policies or key provisions of the Voting Rights Act.
Others may suspect that in declaring the individual mandate to be beyond Congress’ power under the Commerce Clause, Roberts imposed significant restrictions on federal power in the guise of giving a win to the President. I have little doubt that Roberts has an eye on his legacy. The last time the Supreme Court struck down as politically significant a federal law as Obamacare was in 1857, when Chief Justice Roger Taney invalidated the Missouri Compromise in the Dred Scott decision. That decision, which may have led to the Civil War, is justly criticized as one of the court’s lowest moments. Taney’s is not company Roberts wanted to keep.
That said, I don’t buy the more cynical argument that Roberts was patting progressives on the back with one hand and holding a dagger in the other. Roberts has said more than once that the court should strongly presume that federal laws are constitutional. He has said that the job of the judge is like that of an umpire, not to choose sides in a political controversy but simply to call balls and strikes.
He has taken some lumps, but the umpire finally struck back. Today, at least, he is entitled to being taken at his word.