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The Chief Don’t Get No Respect



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Last week, in poking fun here at Yale’s Akhil Amar, I was also making a serious point.  Liberals who were all keyed up to demonize a conservative 5-4 decision against ObamaCare were committing the classic fallacy of the false dilemma, supposing just two possible alternatives when there are more than two.  They were so convinced of the slam-dunk character of their own arguments for the law’s validity that, for them, the only possible explanation for overturning it would have to be that the justices in the majority behaved politically—and by “politically” read “abjectly partisan in the most craven sense.”  What they did not seem willing to credit is the obvious third possibility, that the justices could have a good-faith view of the Constitution’s meaning that differs from their own, even if it does not in the end persuade them—and that no “stick it to Obama” motivation was behind their decisions.

Now I find, amid the pandemonium of commentators on yesterday’s ruling in NFIB v. Sebelius, that much the same fallacy of the false dilemma, with some interesting variations, afflicts many of the critics of Chief Justice Roberts on the right, and even some of the commentators who praise him on both left and right.  That is, the chorus seems to be “the chief justice behaved politically,” and then that putative behavior is either praised or blamed.  Almost (but not quite) universally, there is a refusal to credit the possibility that Roberts meant and believed everything he said in his opinion yesterday, and that he was simply doing what he thought was his duty in the case at hand, regardless of the immediate political situation, or even the long-term future of the Court’s reputation or power in our constitutional system.  More–much more–below the fold.

#more#

Some observers write this way about Roberts because they are persuaded that he was with the four dissenters (Scalia, Kennedy, Thomas, and Alito) and for some reason changed his mind very late in the process.  They adduce some internal evidence for this change of mind in the way the opinions are phrased, and then the speculation begins: if Roberts changed his mind, how come?  But I think I agree with Orin Kerr that it is most likely that Roberts consistently held the same view, from the initial conference vote all the way to the announcement of the decision yesterday.

Regardless of when Roberts settled on the view he expressed yesterday, the range of agreement that he does not and cannot really believe what he said is astonishing.  Consider the following:

Wall Street Journal editors (barely conditioned by the “ifs”): “The political class and legal left conducted an extraordinary campaign to define such a decision [against the law] as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties. If this was a play to compete with John Marshall’s legacy, the result is closer to William Brennan’s.”

David Rivkin and Lee Casey, darkly musing aloud in the WSJ: “The fact that this happened in the context of a hotly contested statute raises questions about the court’s ability to remain immune to political pressures.”

In a WSJ news story, an absurd jiu-jitsu thesis: “By confounding charges that the court is too partisan, the chief justice might have earned sufficient political capital to move to the right during the next term, when the court will likely confront a host of hot-button issues, including affirmative action, gay marriage and the continued vitality of the Voting Rights Act.”

Adam Liptak in the New York Times: “On Thursday, [Roberts] chose compromise, or perhaps statesmanship.”

David Brooks with praise in the NYT: “In his remarkable health care opinion Thursday, the chief justice of the Supreme Court restrained the power of his own institution. He decided not to use judicial power to overrule the democratic process. He decided not to provoke a potential institutional crisis. Granted, he had to imagine a law slightly different than the one that was passed in order to get the result he wanted, but Roberts’s decision still represents a moment of, if I can say so, Burkean minimalism and self-control.”

Neal Katyal in the NYT, trying to have it both ways in one sentence: “While Chief Justice Roberts wrote an opinion that was apolitical and deserves much praise for its statesmanship, he did so within a legal context that is becoming less and less democratic.”

Charles Krauthammer in the Washington Post, once again a psychiatrist: “Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result—a 5 to 4 decision split along ideological lines that might be perceived as partisan and political.”

Ruth Marcus in the Post: “I’ve always thought of the Supreme Court as having a kind of internal, institutional gyroscope that keeps it from veering too far out of kilter.”

Dana Milbank in the Post: “[Roberts] forged a middle ground that spared the nation the political crisis that would have come from striking down the president’s signature legislative achievement.”

E.J. Dionne in the Post: “Roberts avoided the farther shoals of conservative ideology. He sought to avoid a direct confrontation with the executive and legislative branches.”

NR’s Ramesh Ponnuru at Bloomberg: “Roberts may think he has threaded a needle. He has avoided affirming an expansive reading of the Commerce Clause, which conservatives loathe, while refusing to give liberals the ammunition to call him a partisan for dismantling their cherished law. He acted cleverly. He also acted less like a judge than like a politician, and a slippery one.”

Mona Charen at NRO: “Roberts bent over backwards to find the law constitutional, most likely because he was loath to see the court attacked.”

Jonah Goldberg at NRO: “Of course, there are substantive arguments in favor of Roberts’s reasoning. But as far as I can tell, no one is confident, never mind certain, that Roberts actually believes his own position.”

Rich Lowry at NRO: “Roberts gets points for cleverness. He set clear constitutional boundaries without striking down the law. He largely sided with the critics of Obamacare without enraging its supporters. He came up with the only 5–4 decision that wouldn’t subject his court to the calumny of the Obama administration and law-school deans everywhere. All the op-eds that had been drafted trashing the legitimacy of the court have been filed away for now.”

Daniel Epps in The Atlantic: “[W]hile the Chief Justice is taking a lot of heat from the right, the way he handled the case might actually turn out to be a brilliant strategic move — one that could very well define his judicial career, and could actually be the optimal outcome for Republicans.”  (Epps then compares Roberts to Chief Justice John Marshall in the 1803 case of Marbury v. Madison, about which more below.)

Adam White at The Weekly Standard:

In Marbury, Marshall nominally ruled in favor of President Jefferson, holding that the Court would not overturn Jefferson’s controversial decision to rescind appointments made by his predecessor, President Adams. But by asserting the Court’s power to make even that decision, Marshall firmly established the Court’s power of judicial review, a fundamental protection for the Constitution’s limits on the federal government.

The chief justice’s opinion today accomplishes a similar feat. Roberts . . . silences those on the left who would (and did) accuse him of “judicial activism,” yet he reaffirms the Commerce Clause’s limits, and he simultaneously hands President Obama a difficult political choice: The president can now claim vindication over the mandate, but only by agreeing that the mandate is an immense increase in Americans’ income taxes.

Obviously these commentators are different in some respects.  Some of them draw their conclusions about Roberts’ motives tentatively, or only after a serious consideration of his arguments, which they ultimately reject before moving to wonder aloud about what he intended.  But even in the praise for his cleverness, or statesmanship, or canny attention to the decades he has ahead as chief justice, there is remarkably little credence given to the possibility that Roberts saw his duty clearly with respect to the actual issues in the case in front of him.

My last two examples above are not the only ones I could have given of people comparing Roberts’ opinion yesterday to Marshall’s in the Marbury case of 1803.  It is durable conventional wisdom about Marbury that John Marshall—cleverly, deviously, like a statesman, or all of the above—navigated the case in such a way as to a) bludgeon President Jefferson for his violation of Marbury’s rights, and b) have the last laugh by declaring (or “seizing,” some say) the power of judicial review for the Supreme Court, thus avoiding an immediate battle the Court could not win but elevating its prestige for the indefinite future.  The unspoken predicate of this tale about John Marshall is that he did not entirely believe in what he actually did and said in the case.

This understanding of Marbury has everything going for it except actual evidence, and the durable myth has been comprehensively exploded by the best scholarship on the case, and on Marshall’s career, in the last quarter century.  Bad history has a life of its own, it seems.

I hope that Chief Justice Roberts is not the victim of similarly dubious history.  I happen to agree with the dissenters in yesterday’s case.  But I do think Roberts was not behaving at all politically, either in the narrow “pragmatic” sense of avoiding an immediate political firestorm or looking for room to maneuver in the next term of the Court; or in the venal sense of “shifting left” when we had a right to expect better of him; or in the “ain’t he a clever statesman” sense of constructing a kind of trap for President Obama, laying down principles for future decisions, and preserving the Court’s long-term reputation.

Consider first of all how little reason Roberts actually has to care about any of those things.  Supreme Court justices are given life terms.  No really effective attack has successfully been made against the Court since the immediate aftermath of the Civil War.  (More’s the pity.)  Neither Bush v. Gore nor Citizens United can possibly have cost him even an hour’s sleep, notwithstanding the bleating of liberal law professors and editorial writers.  Public opinion polls on how people view the Court?  Pfooey.  Who cares?

Did I just try to get inside his head myself?  Maybe a little, but only in order to defend the probity of the only thing that has actually come out of his head—his written opinion. 

Consider now the reasons Roberts gave in that opinion.  On every constitutional dimension of the issues in the case regarding congressional power, his principles appear to be indistinguishable from those of the joint dissenters.  Like them, he thinks the commerce power cannot be employed to conjure commerce into existence in order to regulate it.  Like Roberts, the joint dissenters appear to have no problem with Congress pursuing the objective of getting people to buy health insurance by using the taxing power, as long as it is clearly employing that power.  Together (joined even by Kagan and Breyer), the five conservatives agree that Congress can’t use the “gun to the head” of eliminating all of a state’s Medicaid funding in order to coerce it to accept the new “expansion” of the program.

Every real difference between Roberts and the four joint dissenters comes down to statutory construction.  And on the question whether the mandate can be brought under the rubric of the taxing power, it boils down to this.  Which is the most compelling reading of the mandate—the most natural reading of the statute’s language, or the most favorable reading of its language on the basis of which it can be upheld?

The joint dissenters chose the first option, of the most natural reading.  Roberts chose the second option, of the most favorable reading.  This, for reasons he gives at length, strikes him as the soundest way to proceed, consistent with the judicial duty never to hold an act of Congress unconstitutional that need not be held unconstitutional if it can be saved on any plausible reading.  The dissenters, and countless critics, denounce Roberts’ reading as “judicial rewriting” of the statute.

Suppose that’s right.  I am sympathetic to that conclusion myself.  Why on earth does it have to follow that Roberts must think so himself, and that his behavior was therefore “political” (in any of the senses above) and should be praised or blamed on that basis?

I have no reason to rule out the third possibility—that Roberts has a respectably principled, different view of his constitutional duty than his fellow justices who dissented, and that he was thinking of nothing other than that duty in deciding this case.

And you know what?  No one else has any reason to rule this out either.



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