Randy Barnett has written a couple of excellent blog posts responding to Jeff Rosen’s recent column about Chief Justice Roberts, the Obamacare litigation, and the revival of the so-called “Constitution in Exile” movement. I recommend both posts, but I would like to highlight just one of Randy’s arguments because it challenges a meme that seems to be getting picked up with more and more frequency. Rosen concluded his column with the following assertion regarding Chief Justice Roberts (italics mine):
This, then, is John Roberts’s moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. Of course, if the Roberts Court strikes down health care reform by a 5-4 vote, then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure. But, by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance. This is the era that Judge Brown and Randy Barnett yearn to revive: a time when crusading judges struck down progressive economic regulations in the name of hotly conservative economic doctrines that a majority of the country didn’t favor. We’ve seen this script play out before, and it didn’t end well for the Court.
To assert that “conservative” justices may not invalidate legislation sponsored by a “progressive” President, or a Democratic Congress (albeit a prior Democratic Congress) would be to inject a wholly political consideration into what is supposed to be the impartial exercise of judicial judgment. It would be like saying that, in Game Seven of the World Series, a National league [sic] umpire should shrink the strike zone when the American league players are at bat — if the game is close, and the American league team is behind. Just to be perceived [b]y American league fans as “fair.” . . . If the justices are perceived by the public as yielding to this overtly political media onslaught, it would fatally undermine the independence of the Supreme Court.
In Rosen’s world, avoiding 5–4 decisions at all costs is apparently a higher virtue than following the law. But, for the sake of argument, let’s set aside the question whether the law obligated the chief justice to vote a certain way. And let us also stipulate, for the sake of argument, that Rosen is right to place such high value on consensus. Rosen’s assertion that the chief justice would be an ”irredeemable failure” is still a dramatic overstatement.
First, it ignores the fact that the chief can only directly control his own vote and therefore would only be in a position to flip a 5–4 decision against the mandate to another 5–4 decision in favor of it. If Rosen is really concerned more about the vote counts than the ultimate results, both results would leave identical black marks on the chief justice’s record.
To the extent that Rosen hopes the chief justice will engage in lobbying of his colleagues reminiscent of the Warren-era court, such a strategy is inherently limited. Even if the chief justice were able to articulate a narrow decision that avoided making any major constitutional ruling (and if there were an obvious route to such a ruling, it is hard to imagine another of the many parties and amici would not have hit upon it), a determined coalition of four liberal justices would still be in a position to foreclose a consensus result simply by rallying around a position they knew none of the conservatives would accept.
The disproportionate weight Rosen places on this case also suggests he is more concerned about the outcome of the case than progressing toward unanimity. Take, for example, Sackett vs. EPA and Hosanna-Tabor, two of this term’s most important cases that could have been decided 5–4. Both were decided unanimously. Apparently a 5–4 ruling in the Obamacare case would cancel out these significant unanimous decisions. I would be curious to hear Rosen’s explanation.