Roberts’ Health Care Decision: Statesmanship, Not Jurisprudence

• July 12, 2012 • 1:04 pm

Just a few hours after the Supreme Court handed down its decision in NFIB v. Sibelius, I sent Washington Monthly a short post giving my instant reaction. My main purpose was, to be honest, to tell everyone that I had correctly predicted the Court’s decision. Sadly, I had previously failed to do so anywhere public, but just two days before the decision was handed down, I wrote to one of my graduate students, who was sure the Court would strike down Obamacare, “my prediction is that Roberts writes the opinion, and he upholds it on the taxing power. I know everyone thinks they strike it down, but I’m sticking to my guns that they don’t.” The lesson here is, for all the aspiring pundits reading this blog—always publish your predictions! If they’re wrong, no one will notice, and if they’re right, you’ll be able to prove your Nostradamus-like skills.

From the moment the Court took the case, I was telling everyone I could that no, the Court would not strike the law down, and that I anticipated that it would uphold it 7-2 or even 8-1. That said, my guess was also that the Court could not simply uphold it. I am a political scientist, not a lawyer or law professor, and the lens through which I view high-profile cases like this is pretty frankly political. My thought was that the political constraints on at least a sufficient bloc of conservatives to uphold the decision were: a) Striking down the highest profile piece of legislation of the opposite party, directly, was simply unthinkable but; b) The group of conservatives who voted with the liberals had to provide something to their own side in the process. I wasn’t exactly sure what that “something” was, but I was sure that there would be something.

I have to admit that I was surprised that the only conservative who voted with the liberals was Roberts. In the post I noted that one of the main reasons I thought that the Court would not strike the law down on Commerce Clause grounds was that, politically, doing so was inconsistent with their track record:

Roberts’ decision is actually pretty consistent with the Court’s actions in other commerce clause decisions. The Court has been most aggressive in enforcing commerce clause limits when the actual policy consequences have been the smallest. U.S. v. Morrison, for example, struck down a provision of the Violence Against Women Act that was more or less redundant to state laws (it arguably strengthened them by giving women a federal right to sue, but striking down that provision didn’t leave a policy vacuum). Roughly the same thing was true in U.S. v. Lopez, where the Court struck down the Gun Free Schools Act. In both cases, the actual policy significance was relatively marginal, and the Court could reasonably assume that the laws in question were more a matter of position-taking by Congress than a really serious effort at policymaking. NFIB v. Sibelius was another matter altogether, a signature policy of the President and his entire political party. Had Roberts have followed the other conservative justices in overturning the ACA, he would have broken with the political strategy of the bulk of the Court’s previous commerce clause cases.

Note that I say nothing here about whether the decision was consistent with the reasoning or logic of the Court’s precedents. My argument was that there was a political logic to where and how the Court had previously chosen to tighten up on the Commerce Clause. To make that distinction, and to show how Roberts was actually more consistent with it than the dissenters, I used a baseball analogy:

The best way to understand the difference between Roberts and the dissenters is to think of two pitchers who are throwing to a batter who is crowding the plate. The first pitcher throws at the batter’s head, while the second brushes him back. At least in this decision, Roberts decided to be that second kind of pitcher. Roberts wanted to send a signal to the other branches that there are limits on government, and the ACA was really crowding the plate. But he didn’t want to hit the batter and invalidate the whole law. So declaring that the mandate violates the Congress’ power under the commerce clause but upholding it as a tax does what Roberts wanted to do: get Congress to pay closer attention to constitutional norms while not precipitating a bench clearing brawl.

I wrote the post very soon after the decision was handed down, before I was able to read the entire thing. The more time I have had with it since, the closer I think Roberts came to hitting the batter. I agree with some analysts, like Ramesh Ponnuru, that the impact of Roberts accepting the Randy Barnett action-inaction distinction is probably no big deal. In fact, the only policy that I can think of that would be vulnerable to it in the future would be—ironically!—mandatory privatized Social Security accounts. To be very uncharitable, the Commerce Clause part of Roberts’ decision was basically boob bait for conservatives, although it seems not to have worked.

But the Medicaid part of the decision, which was probably extracted from some of the liberals as Roberts’ pound of flesh for upholding the mandate, really is a big deal in raw policy terms. At least in the short term, it really throws a monkey wrench in the basic structure of Obamacare, although I’m not quite sure that Roberts appreciated how much. Expansion of Medicaid is, at least in the short term, the most important mechanism in the law for getting to universal coverage, and it would have its greatest impact on reducing the uninsured in states with relatively stingy Medicaid eligibility (like Texas and Florida)—the same states that are now threatening not to participate. That creates a potentially very weird vacuum in those states, between the very poor (and, remember, senior citizens in nursing homes) on traditional Medicaid and those higher up the income scale who will be in the exchanges. You could solve that problem by pulling those who would have been in expanded Medicaid into the exchanges, but I’m not 100% sure that HHS will be able to get away with doing so. Furthermore, the structure of federal-state aid conditionality is at the core of how we’ve chosen to organize a big chunk of the American welfare and regulatory state. While I’m sympathetic to Michael Greve’s argument in his recent, fantastic book The Upside Down Constitution, that this structure is deeply screwed up, it is also quite deeply embedded. If Roberts is using the decision in NFIB v. Sibelius to open up a broader reassessment of federal grants, that would be a very, very big deal.

I went on to speculate that the key to understanding Roberts’ decision might be his background in the Reagan Justice Department. I argued that:

One way to think about Roberts’ decision-making is that he really is a Reagan Justice Department-era conservative (I wrote about the Reagan DOJ in an article in Studies in American Political Development called “Transformative Bureaucracy”). That era of conservatives were pissed off at the activist judiciary that brought us school busing and other forms of what they took to be social engineering (which explains Roberts’ very blunt ruling in Parents Involved [in Community Schools v. Seattle School District No. 1]) and an inversion of American federalism. But that generation of conservatives were basically followers of Justice Frankfurter, and they tended to argue that it was 1960s/70s judicial liberalism that they were against, which they claimed was a kind of Lochnerism of the left. That kind of judicial conservatism—which was really Robert Bork’s style of conservatism, and the origin of his version of originalism—is in very stark contrast to legal libertarianism that inspired the case against the ACA.

This was the most half-baked part of my post, and if I’m being honest, it was probably motivated by my desire to get people to read my (if I say so myself) very interesting historical analysis of the Reagan Department of Justice. Of course, this was the part of the post that got the most attention, having been quoted by Reihan Salam and Carrie Severino at NRO, and Ross Douthat and (today) Linda Greenhouse at the New York Times. Severino has got a lot going for her when she notes that, “First, and most obviously, the chief justice was not joined in his opinion by Justice Alito, another ‘Reagan Justice Department-era conservative.’ Outside of the Supreme Court, opponents of the law included a number of former Reagan DOJ officials — David Rivkin, Lee Casey, Mike Carvin, Stephen Calabresi, just to name a few. And that’s not to mention the head of Reagan’s DOJ, former attorney general Ed Meese.” Touché. My point was mainly that, for someone whose motivation to join the conservative legal movement was opposition to judicially-imposed interference with the complicated political bargains produced by the political branches, striking down the Affordable Care Act was likely to be a lot to swallow. Obviously a large number of DOJ alums from this era got over whatever qualms they might have had. But I still think there’s probably something to the idea that they weighed more heavily on Roberts than the others, although we may never know the answer.

Severino notes, rightly, that, “no one will ever know exactly what motivated Chief Justice Roberts, but the evidence suggests that he was far more motivated by concerns for the Court as an institution and for himself as chief justice.” I think that really is the key argument, and was in fact the guts of my original post. There’s a smart, and a dumb, way to express this. The dumb way is to say that Roberts “lost his spine,” which is very widespread on the conservative side of the opinion-sphere, despite the fact that there is not much to base it on other than an unsavory brew of anger at having lost and some leaks from disappointed clerks.

The smart version of the institutional argument combines two elements. One is concern for the reputation of the Court and a desire to have it not seen as entirely politicized. This is a real phenomenon, I think—the Court has a small but real reservoir of support in public opinion that is not directly correlated to ideology (although it’s been shrinking). Losing that would be a big deal. But I think it’s a stretch to think that really explains Roberts’ decision-making. Rather, my guess is that Roberts would have joined a decision more or less striking down the mandate but severing it from the rest of the law, but he couldn’t get the rest of the four justices to go along with him. So he ended up having to cut a deal with the liberals. My sense is, as I noted before, that as an institutional matter justices have some sense of how far they can legitimately push on the political branches, and they make that judgment and then figure out a legal rationale to back themselves up (this is true on the Court’s more high-profile cases—I do think on some of the more boring but very important legal plumbing work the Court does, that there’s such a thing as actual legal craft that influences decision-making).

Roberts, no doubt influenced by his position as Chief Justice, made the call that he could pull at the seam of the law pretty hard but couldn’t unravel it completely. Doing so really would put the Supreme Court in a state of outright war with the Democratic Party. There is an element in Supreme Court decision-making that can be explained by statesmanship rather than jurisprudence. Law professors are unlikely to be very impressed with that element, but it’s a real, permanent and unavoidable aspect of our system of government. On no really important aspect of jurisprudence did Roberts actually break from his conservative brethren, but he did make a different political judgment than they did—not on what the Court could get away with, but what was really appropriate for it to do on a matter of such great policy significance.

Conservatives may not like that, and Roberts may have been wrong in his judgments as a statesman. But talking about his decision as if he had a choice not to exercise statesmanship of some sort, and decide the case as if he was writing a third-year con law honors paper, is silly. Roberts had a burden of responsibility that conservative talking heads do not.


  • Lori Meyer says:

    I have a slightly different take here. (note that I posted essentially this comment in a comment at Volokh as well)

    Isn’t it possible that Roberts began to see this case as a vehicle where he could lay out his big -picture vision of limited government, and thereby distinguish himself from being a knee-jerk conservative just joining in with the other conservatives (more in a bit on whether this was an appropriate thing for him to do as Chief Justice). So, since Roberts may have differed with the other conservatives on severability, instead of just constructing a ruling where he managed to hold the mandate unconstitutional and salvaged the rest of the Act through his belief that the Court should defer to Congress if at all possible, Roberts decided to take an extra step and publicly express in a majority opinion his view that the federal government has the power through taxation to prod the public toward certain behaviors. For example, Roberts may have felt that the government may prod through a “low enough” tax, and if enough people didn’t embrace the behaviors, that point would be made to the Executive branch through the number of people choosing to pay the tax, and to the legislature through who got re-elected after the taxation statute was passed.

    I expect Roberts could distinguish this situation from an Act prodding behaviors under the Commerce Clause, because people would be acting illegally in addition to registering their displeasure by choosing to pay a penalty – the government would be saying people must act a certain way, or be a criminal, which I would think any conservative minded Justice would find anathema. Of course, under this read, Roberts does not really care about the activity/inactivity distinction – he cares about how the government reaches into people’s lives and characterizes the choices people make, and what the political theoretical meaning of those choices is.

    Two things still get me, even under this reading.

    First, if the government is prodding behavior through tax, then the tax is a tax and the Anti-Injunction Act applies, even if the greater purpose of the tax is to prod behavior, and not collect revenue, because only through the collection of revenue will there be an accounting of how many people prefer to pay a low amount of money rather than engage in (or refrain from) a certain behavior.

    And second, I don’t think it is the Chief Justice’s role to so explicitly shape the political theory of a case as it seems Roberts has done here. The Supreme Court is a nine justice court, where it is important that the shape of the law emerge from a consideration of the issues put before the Court, through a dialogue between the parties before the Court and the Justices. Time and time again, cases before the Roberts Court have seemed to have been steered a certain direction toward a result, instead of a more common law process where the law develops in an accretionary manner, slowly and surely through a myriad of cases. At least to me, this makes the Court a more activist institution than I think the judiciary should be.