Kurt T. Lash


One of the nation’s leading scholars of constitutional law, Professor Kurt T. Lash is honored as the newest recipient of the Alumni Distinguished Professor of Law at the University of Illinois College of Law, where he directs the Program in Constitutional Theory, History, and Law. A graduate of Yale Law School, Professor Lash served as law clerk to the Honorable Robert R. Beezer of the United States Court of Appeals for the Ninth Circuit. He joins the University of Illinois from Loyola Law School Los Angeles, where he served as the James P. Bradley Chair of Constitutional Law.

A Roberts Switch in Time?

June 28, 2012

There will be a great deal of analysis over the next several weeks regarding whether Chief Justice Roberts switched his vote from invalidating to upholding the individual mandate.  There is circumstantial evidence that the dissent of Justices Scalia, Kennedy, Thomas, and Alito was, at one time, a majority opinion (its several references to Justice Ginsburg’s concurrence as a “dissent,” for example).  The accusation seems inevitable given the obvious public pressure on the court by the Obama Administration and various legal commentaries to uphold the law, and the too perfect opportunity to discuss yet another “switch in time” by yet another Justice Roberts.

But even if true (and I am not yet sure that it is), there is nothing nefarious about a justice changing their mind about a particular decision.  Hopefully every justice on the Court continues to think about matters up to the moment a decision is handed down and, hopefully, even afterwards.  Moreover, this is not the first time we’ve seen the Chief Justice on the left of Justice Kennedy on a matter involving the proper interpretation of federal power.  In United States v. Comstock, Chief Justice Roberts joined the liberal wing of the Court in an opinion that included an extremely broad rendering of the Necessary and Proper Clause.  Justice Breyer’s almost completely deferential reading of congressional power under the Clause was so expansive, it prompted Justice Kennedy to write a concurrence insisting that the Court continue to engage in active and serious oversight of federal power.  Indeed, Kennedy has been increasingly vocal regarding his commitment to Constitutional federalism as an aspect of American liberty (see, for example, his decision in Bond v. United States).

In light of Chief Justice Roberts joining the majority in Comstock, there was an obvious possibility that he would continue to see federal power under the Necessary and Proper Clause in terms more like that of Justice Breyer than that of Justice Kennedy—with obvious implications for the Patient Protection and Affordable Care Act.  What is significant, therefore, is the degree to which Chief Justice Roberts adopted as his own the federalism analysis of Justice Kennedy.  Not only did Chief Justice Roberts agree with Kennedy that the individual mandate “changed the relationship between the individual and the government,” he also joined a majority holding for the first time that Congress had attempted to use its spending power in a manner that unconstitutionally coerced the states.  This latter holding will likely come to be the most important and longest lasting theory of the collective “Health Care Cases.”

For the moment, though, it is worth pausing and noting that the Chief Justice adopted every theory of limited government put forward by opponents of Obamacare, save one—the claim that, if viewed as a tax, the taxing power had been exercised in a punitive manner.  A lot of ink will be spilt regarding the persuasiveness of this part of the opinion.  I think most will agree, however, that the analysis of Chief Justice suggests clear limits to any similar future efforts.

In fact, there is a great deal for federalists to celebrate in this outcome.  The theories of limited government so long considered cries in the wilderness are now, as Professor Lawrence Solum has noted on his Legal Theory Blog, the new “gestalt.”  In the end, there may well have been a significant switch that occurred in this case, but I am not convinced it is the one that commentators will be talking about for the next several weeks.