The Roberts Opinion
A “deeper meaning”?


George Weigel

Krakow, Poland — The thought may have occurred because I was en route from Rome to Krakow the day the Obamacare decision was handed down, traveling between the administrative center of Catholic Christianity and one of Catholicism’s most vibrant local churches. But whatever its provenance, the idea came to me, after reading Chief Justice John Roberts’s majority opinion, that those who applauded it and those who deplored it might both benefit from considering it through the lens of an old-fashioned theme in Catholic biblical interpretation — the idea that a scriptural text contains a sensus plenior, a fuller or deeper meaning, than can be apparent at first glance.

The American scholar Raymond E. Brown, one of the first Catholics in the Anglosphere to use the historical-critical method of biblical exegesis, nonetheless wrote a dissertation on the older exegetical notion of the sensus plenior, which he defined in these terms:

That additional, deeper meaning, intended by God but not clearly intended by the human author, which is seen to exist in the words of a biblical text (or group of texts, or even a whole book) when they are studied in the light of further revelation or development in the understanding of revelation.

I have no special insight into the mind or motivations of the “human author” of the Obamacare majority opinion; Chief Justice Roberts is certainly not God, and Supreme Court decisions are not “revelation.” But just as the insights that come from history and experience can unveil in biblical texts truths that their authors were only dimly aware of (or that they could not imagine in their own time and context), so there may be truths embedded in the chief justice’s opinion that have implications far beyond the Affordable Care Act — truths that could in fact presage the demise of Obamacare and the beginnings of a new national commitment to building the responsible society.

This is not to suggest that the chief justice got it right in his judgment. Insofar as a non-lawyer can understand the subtleties of these things, those who contend that Roberts’s attempt to constitutionally justify the individual mandate by treating it as a tax was undone, as to both logic and precedent, in the dissenting opinion of Justices Scalia, Kennedy, Thomas, and Alito seem to have a very strong case. But the chief justice’s opinion contained several dicta that point us to deeper truths about the continuing Obamacare debate, the Congress, the responsibilities of the American people, and the future of our democratic political culture. Which is to say that, read via the sensus plenior, and irrespective of its finding, the Roberts opinion can be seen as a welcome call to recover an American constitutional order that has been too often forgotten during decades of judicial supremacy.

The first of these “deeper” truths is that the convictions and character of the American people are the ultimate guarantor of that constitutional order and the liberties it was intended to protect. The Constitution, the chief justice notes, clearly gives the Congress the power to tax and spend. The ultimate constraint on that power, however, is not the federal judiciary but the people’s moral and political judgments. The chief justice thereby suggests that if “we, the people of the United States,” do not like the way the Congress taxes and spends, it is not only our prerogative but our responsibility to do something about it by electing new representatives who will tax and spend differently.

So one “deeper truth” in the Roberts opinion is that the days of contempt-for-Congress-in-general linked to approval-of-my-member-of-Congress-in-particular (a widespread phenomenon, according to many polls) have to end. If “my member” is party to a power grab by the federal government over one-sixth of the U.S. economy, and if I disapprove of that on fiscal grounds, constitutional grounds, public-policy grounds, moral grounds, some of the above, or all of the above, then my duty is to help elect someone else, no matter how good “my member” is at delivering the Social Security check on time or straightening out my IRS problems, and no matter what party my grandparents habitually voted for. Thus the chief justice’s bluntly phrased reminder that “it is not [the Court’s] job to protect the people from the consequences of their political choices,” far from being a dodge of judicial responsibility, ought to be read, according to the sensus plenior, as a summons to a new national political maturity — a recognition that voting is not a glandular exercise but an exercise in moral and political judgment.

The second of the deeper truths implied by the Roberts opinion is that the Congress as presently constituted and currently functioning has too often been derelict in its constitutional duties. Thus at several points in his opinion, Chief Justice Roberts suggests, in some instances sharply, that the Congress should get serious. The majority opinion underscored at several points that constitutional approval of the individual mandate was not a judgment on the mandate’s soundness as policy. This implies that the policy might, in fact, be a stupid one — stupid policy the Obama administration made worse by an appeal to the Constitution’s Commerce Clause that, upheld, would have destroyed the notion of the federal government as a government of limited and enumerated powers.

There were several barely disguised smackdowns in the chief justice’s refusal to accede to this Commerce Clause argument and to the lax congressional lawmaking it attempted to justify. They included a blunt lesson in elementary English (“the language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated”) and a devastating analogy (“Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables”). Beyond this, however, deeper truths were beckoning: the truth that the Obamacare bill was a legislative dog’s breakfast that reflected badly on the competence, honesty, and public-spiritedness of a Congress whipsawed by various interests; the truth that the constitutional order is jeopardized when the Supreme Court becomes a crutch for irresponsible legislators who imagine that their malfeasance can always be fixed by the federal judiciary. Congress demeans itself when it acts irresponsibly, the majority opinion suggested, and such irresponsibility is one factor in the evolution of an imperial judiciary — an aberration that the chief justice seems to regret, to his credit.