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The Franck Defense of Roberts



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I have been reading the various attempts by conservatives to defend Chief Justice Roberts, or his opinion in the Obamacare case, or to find silver linings in it, in much the same way that I imagine Roberts himself read the Obamacare law: with a desperate hope to find a way to think better of it. So far interpretive charity has failed me, as I wish it had failed him.

In future posts—consider this fair warning—I will consider the claims that Roberts’s holdings regarding the commerce clause and the limits on federal “coercion” of the states amount to a cleverly constructed trap for liberals. For this post let me start with Matthew Franck, whose clear and penetrating writing on the law has changed my mind on many previous occasions. He has emerged, to my mind, as the best of Roberts’s defenders. Which is a bit curious, since he writes, “I happen to agree with the dissenters.” In a series of posts (second, third), however, he has argued that Roberts’s argument was a reasonable one that does not deserve many of the criticisms it has drawn—including my own.

In the course of making his case, Franck makes many indisputable points. No reader can validly infer from the mere fact that he finds Roberts’s opinion unpersuasive that Roberts must also have found it unpersuasive, and was therefore engaging in some species of dishonesty. Franck is also right to reject the parallel drawn between Chief Justice Roberts and Chief Justice John Marshall, which imagines that the earlier jurist craftily manipulated Marbury v. Madison to reach a politically congenial conclusion. (Journalistic conventional wisdom has not caught up to the scholarship on that case.)

My alleged offense was to accuse Roberts of acting like a “slippery” “politician” in rewriting the Obamacare statute. Franck argues that even if Roberts is guilty of rewriting the statute, there is no evidence that he sees himself as having rewritten it, and therefore my characterization is unjust (as are similar ones by others). I don’t understand how Roberts can fail to grasp this point.

Consider: The statute as written denies all federal Medicaid funds to states that refuse to expand the program. Roberts, concluding that this threat is unconstitutional, did not strike down the whole statute, or strike down the Medicaid expansion, but selected a new condition out of a large range of possible alternatives to impose. If this move does not count as a conscious rewriting of the law, what would?

Yuval Levin writes, “The law as the Supreme Court has rewritten it today would not have passed. It contains all of the many grave flaws that have made Obamacare so unpopular, and fewer of the elements that finally persuaded some wavering Democrats to hold their noses and vote for it.” Levin’s understanding of this point cannot be attributed to Roberts, of course, but it is hard to believe he missed the fact that the law that survived the Court differs substantially from the one that reached it. (Perhaps we should call the new one Robertscare.)

In other words: Of course he rewrote the law, and with a fair degree of discretion in how he did so.

For the same reasons, David Brooks’s paean to Roberts’s “modesty” in this case is unpersuasive. Argue, if you want, that rewriting the law from the bench was the right thing to do. Do not try to claim it was the modest thing to do.

To return to Franck: His posts (especially the second one) also seem to be plagued by a false alternative. Either Roberts was unduly influenced by pressure, or he issued a decision he considered defensible. Let me suggest, without making any claims about Roberts’s psychology, that corruptions of the will and intellect can happen more subtly than that. Someone with a strongly felt motive to reach a particular result may find the argument for it rather more plausible than he would have without it. Pressure can supply that motive.

Franck concludes his latest post by lighting a stick of dynamite: “The intensity, passion, and frequent fallaciousness of the criticism aimed in his direction suggest that for many of his critics, it has always been the result that matters–the fall of ObamaCare–rather than the integrity of legal reasoning.” As often happens with dynamite in cartoons, however, the explosion seems to demolish the wrong side.

Is not Franck doing the very thing he is condemning? He is using the alleged weakness of the arguments of Roberts’s critics as a premise from which to reach the conclusion that they care about political outcomes more than the integrity of legal reasoning. If it is not wrong for him to make that kind of argument, however, it cannot be wrong for them to do the same thing. The question becomes whether Roberts’s arguments are, in fact, so weak as to raise suspicions about his motives.

Opinions on this question will of course differ. I will note three facts that do not settle the matter but do seem highly suggestive. Lower courts did not find Roberts’s argument persuasive. Few of those who find his opinion congenial find it persuasive either. And as sympathetic an observer as Matthew Franck has not been fully persuaded by it either.



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