In defense of John RobertsJune 29, 2012: 6:01 AM ET
Critics have accused Chief Justice John Roberts of cunning and guile, siding with the high court's liberals to achieve his conservative goals. They are wrong. Here's why.
By Roger Parloff, senior editor
FORTUNE -- Chief Justice John Roberts Jr.'s adroit ruling yesterday -- finding the Affordable Care Act's "individual mandate" to exceed Congress's Commerce Clause powers yet upholding it anyway, as an exercise of Congress's taxing powers -- was a laudable act of statesmanship.
It allowed the U.S. Supreme Court to show "judicial restraint" for the policy judgments of Congress while, at the same time, delivering what was fundamentally an extremely conservative message -- imposing limits on Congress's Commerce Clause powers in ways that could, to be sure, hamper its ability to tackle certain national economic problems in the future. To have delivered such a message while striking down the most important social legislation of our time -- and to have done it in the runup to a Presidential election -- would have precipitated something close to a constitutional crisis, leaving roughly half the country and a far greater percentage of the legal profession harboring profound skepticism about the Court's political impartiality and good faith.
(The ruling was in some respects reminiscent of Justice Roberts's June 2010 opinion upholding the Sarbanes-Oxley financial reforms, even as he declared that they were underpinned by a serious constitutional flaw in their structure. There, he rewrote the law to the degree necessary to save it.)
In the immediate aftermath of yesterday's ruling, officially known as National Federation of Independent Business v. Sebelius, we beheld a strange spectacle: President Barack Obama and Congressional Democrats hailing a ruling that accepts and enshrines into American constitutional law the infamous "broccoli argument" that so many had dismissed as silly and irrelevant, if not crackpot: If Obamacare had been upheld, the five conservative justices agreed in the final ruling, then nothing could have stopped Congress from passing a law requiring all Americans to buy vegetables.
So this was a victory for the nation's political and legal stability and for the basic legitimacy of U.S. Supreme Court. It was not a victory for liberals. By no stretch does this ruling hint that Roberts is now commencing any march across the political spectrum akin to those that Justices Harry Blackmun and David Souter each completed during their terms. Roberts is very -- no, make that amazingly -- conservative. As we saw earlier this week, he's sticking by the Citizens United ruling, and next term he looks poised to very likely scrap what remains of affirmative action in admissions programs at public universities in the Fisher v. University of Texas at Austin case.
At the same time, it's fortunate and good for the nation that he does recognize the need to exercise some statesmanship to shepherd the Court's dwindling store of credibility and perceived legitimacy. (The Court's public approval rate fell to just 44% earlier this month, according to the The New York Times, compared to 66% in the 1980s and 50% in 2000.) The Court's perceived legitimacy is, in the end, the only grounds upon which its rulings command compliance.
As Roberts works to replenish the Court's reservoir of public good will, so depleted by cases like Bush v. Gore, his task is continually made harder by two justices in the conservative camp who do not feel that statesmanship is part of the job description, and who conduct both their official and unofficial lives in ways that seem calculated to maximize partisan distrust rather than minimize it. The method Roberts chose to accomplish his task yesterday -- finding that the individual mandate came within Congress's taxing power -- was certainly sound from a jurisprudential standpoint.
In fact, one of the mysteries underlying all the earlier healthcare rulings, certainly in the minds of many liberals, was the short shrift that lower courts had given to the seemingly weighty taxation argument. (Yale law professor Jack Balkin made this the subject of a keynote luncheon address he delivered at the Yale Club in New York last month.) Truth be told, even the U.S. government lawyers, apparently for strategic reasons, seem to have undersold the taxation arguments until the U.S. Solicitor General finally got involved at the Supreme Court level.
Aside from President Obama, the other individual in the world presumably most gratified by yesterday's ruling must be Solicitor General Donald Verrilli, Jr., who took it in the ear from the peanut gallery for purported miscues during his presentation at the oral arguments last March—hesitations and stammers and the like. But Verrilli got the last laugh. It was his office, after all, that gave the taxation argument more prominence in its briefs than government lawyers had in the courts below, and Verrilli himself hit the taxation argument hard during his rebuttal argument.
How can one justify the "individual mandate" as a tax? As Roberts explained in the ruling, rather than viewing the law as "ordering individuals to buy insurance," you could just as easily conceptualize it as "imposing a tax on those who [did] not buy that product." Mechanically, the law required those who didn't buy insurance and weren't otherwise exempt to pay a sum of money, which it termed a "penalty" or a "shared responsibility payment," to the Internal Revenue Service as part of their tax returns.
Although opponents of the law worked up a lather at the mandate's purported assault upon individual autonomy, i.e. forcing citizens to buy a product they didn't want, the uniqueness of the intrusion vanished as soon as one conceptualized the law as a tax. When it comes to taxes, government is constantly forcing citizens to buy stuff they don't want. Congress can spend our money on wars we don't agree with, for instance. Forcing someone to fund what he considers to be an unjust war seems like a bigger imposition to me than forcing a meat-and-potato guy to buy some broccoli.
Long before the Chief Justice accepted the taxation argument, two of the leading lights among young, conservative jurists had also been scratching their heads over this anomalous situation—obviously troubled by the prospect of striking down momentous legislation when, with a few minor edits, its approval under the tax power would have been routine and guaranteed.
"The only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight," wrote D.C. Circuit Judge Brett Kavanaugh last November, when the rest of his panel upheld the law under the Commerce Clause. Kavanaugh is a President George W. Bush appointee and was one of then-Independent Counsel Ken Starr's top lieutenants during the Monica Lewinsky investigation. "Just a minor tweak to the current statutory language"—basically, changing the word "penalty" to "tax"—"would definitively establish the law's constitutionality under the Taxing Clause," he marveled.
Similarly, Judge Jeffrey F. Sutton of the U.S. Sixth Circuit Court of Appeals—who is often considered future Supreme Court timber—noted last June: "Few doubt that Congress could pass an equally coercive law under its taxing power by imposing a healthcare tax on everyone and freeing them from the tax if they purchased health insurance." (Sutton voted to uphold the law under the Commerce Clause.)
The Chief Justice's ruling was a sensible and plausible way for a very conservative jurist to show meaningful respect for Congress's right to make key national policy decisions while, at the same time, giving teeth to the notion that we are a government of enumerated powers—a notion fundamental to his view of the Constitution.
When a staunchly conservative judge exercises reasoned restraint for the good of the country, that's an act deserving of praise. After all, it doesn't make sense to fault a staunchly conservative judge for not being a liberal.