Against the “Two-Minute Hate” Directed at Chief Justice Roberts

• July 3, 2012 • 1:09 pm

Now that I have the benefit of a long time’s reflection about, and critical distance from, Thursday’s decision (insert appropriate emoticon here, to signal that I’m aware of the funny-absurdity of four days being a “long time” in blog-world), a few thoughts about the ACA cases, and the Chief Justice’s opinion in particular, are starting to come together.

First, I am surprised and (maybe naively) disappointed by the almost-Orwellian “two minute hate” (which, I suppose, could go on longer) that has erupted in the world of talk-radio and in sectors of the right-leaning blogosphere towards the Chief.  One would think he’d suddenly become an amalgam of Bill Douglas (or maybe David Souter) and Bill Ayers, this former law clerk to Justice Rehnquist and lawyer for Ronald Reagan.  (I heard a radio guy say, “I knew it all along, this guy is no conservative!”  But this, of course, is insane.)  All this because he didn’t vote to strike down a law that (a) remains repealable, if it’s so bad, and that (b) most people — including some who are committed to judicial enforcement of the Constitution’s structural features — thought until recently was, even if seriously wrongheaded, probably constitutional under the relevant precedents?  And, apparently, the fact that he somehow got two “liberal” justices to sign on to what I think is the first decision since South Dakota v. Dole to put any teeth in the “there are limits to the federal government’s ability to regulate-by-spending” idea (an idea that is, as I’ve argued, essential to any meaningful “federalism revolution”) seems, in these quarters, to count for nothing.

Second, it is pretty much universally believed (see, for example, Jessie Hill’s recent post), so far as I can tell, that the Chief Justice’s argument that the mandate may be regarded, for constitutional purposes, as a “tax” — not because it obviously is one but in order to save a major statute enacted by the Congress and signed by the President — is glaringly unconvincing, and that the Chief embraced this argument for “political” reasons.  I’ll go out on a limb, and say that, in my view, what the Chief actually says — e.g., that it is possible to regard the mandate, given all the circumstances, as, functionally speaking, enough like a tax to justify taking the avoidance-canon route and upholding what would otherwise be an unconstitutional law — doesn’t strike me as notably less convincing than a lot of things that the Court has done and that many law professors have welcomed.  I have not thought enough about the question, I admit, but it does not seem like we’re talking “Wisconsin v. Yoder was about hybrid rights”-unconvincing here.  And, the very existence of this route — the idea that unelected federal judges should try, if it’s possible, within reason, to interpret federal statutes in ways that keep their existence and merits in the political arena, is “political,” isn’t it?

Third, I certainly hope it is not true — I am confident that it is not — that the Chief changed his vote merely because some critics were (lamely, I think) anticipatorily complaining that it would be activist, illegitimate, etc., etc., for the Court to strike down the law.  (High dudgeon about how shocking it would be for the Court to strike down the ACA, coming from folks who, I suspect, think it was Wise and Good to invalidate, say, the death-penalty or abortion-related laws in dozens of states is a bit hard for me to take seriously, as is disingenuous praise from former-and-future critics of the Chief for his statesmanship here.)  But, here’s another possibility.  I know, I know, it sounds naive, but:  Perhaps the Chief Justice really did come to believe, during the Spring, that — especially in circumstances like the ones surrounding the ACA cases, which were decided months before a presidential election, and which involved the President’s primary legislative accomplishment, and which were vigorously debate (even if unedifyingly enacted) — it would be a bad thing — not for him, or his “legacy”, and not even just for the Court itself — for the Court to strike down the mandate by a 5-4 vote, on a theory that is, even if sound, certainly debatable among reasonable and informed people.  And so, having come to believe this — having changed his mind — he took the “out” that the “it’s permissible to regard this as a tax” argument offered.  It’s not as if (contra, e.g., Roe) he put a bad policy beyond the reach of correction, or voted to remove a deeply contested and inescapably moral question from the political process and to constitutionally entrench what many regard as the wrong answer to that question; to the extent he constitutionalized anything, it would seem to be a pretty hard-core Madisonian approach to the Commerce Clause, the Necessary and Proper Clause, and the Spending Power.

And, of course, he wrote Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  Yay, Chief!

[Cross-posted at PrawfsBlawg.]