THE ROBERTS COURT
On the day after the health care opinion was announced, Roberts went to a judicial conference in Pennsylvania. There he was asked about his plans for the summer. He said he was leaving shortly to teach a class for two weeks in Malta. “Malta, as you know, is an impregnable island fortress,” Roberts said. “It seemed like a good idea.”
Conservatives turned on Roberts swiftly, and with a vengeance. A Wall Street Journal editorial written on the day of the decision described the chief justice’s opinion as “grim,” “shot through with confusion,” “without real restraint,” “a tragedy,” and “damaging to the Court’s institutional integrity.” Ramesh Ponnuru, the National Review senior editor (and uniquely well-informed Princetonian), wrote that Roberts “acted less like a judge than like a politician, and a slippery one.” Mitt Romney, who had earlier promised to make appointments to the Supreme Court in the mold of Roberts, changed his tune. “Well, I certainly wouldn’t nominate someone who I knew was going to come out with a decision I violently disagreed with—or vehemently, rather, disagreed with,” Romney told an interviewer. “And [Roberts] reached a conclusion, I think, that was not accurate and not an appropriate conclusion.”
The outrage was understandable. A late and unexpected change of vote by a Republican appointee to the Supreme Court had again cost the conservative movement a cherished goal. The closest parallel was the Casey decision, in 1992, when O’Connor, Kennedy, and Souter (all Republican appointees) joined with Stevens and Harry Blackmun (also Republican appointees) to save the core of Roe v. Wade and thus to preserve abortion rights. In a way, Roberts’s betrayal was more agonizing. Unlike the members of the Casey trio, Roberts had never before sided with the liberals in a major contested case. And in the health care case, Roberts even embraced the conservatives’ main argument, about the commerce clause. Victory was within reach!
But then, at the last moment, Roberts reached out for a subsidiary argument, about the taxing power—which had been only lightly briefed by the parties—to change the result in the case. And the chief justice’s description of the individual mandate as a tax rather than a penalty might charitably be described as plausible at best. (To this point in the litigation, no other judge had upheld the ACA on that ground.) And in the same opinion, of course, while Roberts said the ACA was a tax for constitutional purposes, he also said that the law was not a tax for purposes of the Anti-Injunction Act. Some cynicism from conservatives, to say nothing of frustration, seemed reasonable.
In fact, for Roberts personally and the conservative cause generally, his vote and opinion in the health care case were acts of strategic genius. One cannot know for sure how future courts will interpret the decision in National Federation of Independent Business, but Roberts at a minimum laid down a marker on the scope of the commerce clause. As Ginsburg noted in her opinion, Roberts’s “rigid reading of the Commerce Clause makes scant sense and is stunningly retrogressive,” possibly even auguring a return to the pre-1937 days when the Court invalidated economic regulations with regularity. Roberts’s opinion is potentially a significant long-term gain for the conservative movement.
In the short term, Roberts took the Supreme Court off the Democratic agenda for at least the foreseeable future. With the exception of Obama’s complaint about Citizens United at the State of the Union in 2010, the president showed little interest in using opposition to the Court as a political weapon; the ruling in the health care case guaranteed that Obama would keep his distance for the duration of the 2012 campaign. In addition, Roberts bought enormous political space for himself for future rulings. In the Court’s 2012–13 term, the justices will take nearly as many combustible issues as they did in the previous year. They will render a verdict on affirmative action in college admissions in a case from the University of Texas, raising the possibility that they will overturn O’Connor’s signature achievement in the Grutter case of 2003. They will examine the future, if any, of Section 5 of the Voting Rights Act of 1965—which has long required mostly southern states to obtain Justice Department permission before making any changes in their electoral rules. Roberts is long on record as being deeply skeptical of any consideration of race by the government. The Court will probably also decide the fate of the Defense of Marriage Act, in the first major test of gay rights in the Roberts Court. Controversies related to Citizens United will also likely return in different forms. In these and other cases, Roberts can advance the conservative movement—and, after health care, he runs little risk of embroiling the Court in partisan politics.
Did Roberts, by his late switch in the health care case, poison his relations with his conservative allies on the Court? That is very unlikely. On the very night of the Court’s decision, June 28, Thomas attended a dinner in Washington for local alumni of Yale Law School. (In December 2011, Thomas finally ended his long estrangement from his alma mater with a cheerful visit to New Haven.) In a question-and-answer session with attendees, Thomas paid a lengthy tribute to the way Roberts handled the health care case. Given the complexity and competing pressures, Thomas said, “he handled it just right.” Several days later, Kennedy spoke to a gathering at the Aspen Institute, where he made a pointed defense of a justice’s right to change his mind while a case was pending. He noted he had often done it himself. Scalia was furious, but what did Roberts have to fear from his senior colleague? After all, at this late date Scalia was not going to start moving to the left to punish the chief. Anyway, even by Supreme Court standards, Scalia was old—and Roberts was still young. Leaks before and after the decision were more likely the work of petulant law clerks rather than of their bosses. The justices knew where the power resided on the Supreme Court, and they understood that it seldom paid to hold grudges against colleagues.
Conservatives and liberals, on the Court and off, recognized the health care decision for what it was: an act of leadership by the chief justice. It’s John Roberts’s Court now.
“Good afternoon,” President Obama said in the East Room of the White House. “Earlier today the Supreme Court upheld the constitutionality of the Affordable Care Act, the name of the health care reform we passed two years ago. In doing so, they’ve reaffirmed a fundamental principle: that here in America, in the wealthiest nation on earth, no illness or accident should lead to any family’s financial ruin.” He said nothing more about the decision, preferring instead to tout the benefits of the reform plan itself.
The Obama administration illustrated a fundamental difference between contemporary Republicans and Democrats. Starting with Ronald Reagan and proceeding through both sets of Bush years, Republicans demonstrated a profound commitment to their vision of the Constitution. There was a Republican judicial agenda for change: expand executive power, end racial preferences intended to assist African Americans, speed up executions, prohibit all forms of gun control, welcome religion into the public sphere, deregulate political campaigns, and, above all, reverse Roe v. Wade and allow states to ban abortion. There was a Republican judicial philosophy: originalism. Republican presidents talked publicly about this agenda. They made judicial appointments, including to the lower courts, a major priority. Republican legislators fought for their party’s judicial nominees—and obstructed and harassed Democratic nominees to the courts, even uncontroversial ones.
Barack Obama was not only an outstanding law student and a practicing lawyer but also, as he often pointed out during his first campaign for president, a professor of constitutional law. In the White House, he enjoyed reminding his subordinates of his mastery of legal issues. (On greeting a delegation from his counsel’s office, the president sometimes joked, “Oh, the lawyers! This is the easy part of my day.”) But Obama rarely discussed the Constitution outside the Oval Office.
Obama made two sterling appointments to the Supreme Court, and he was justly proud of these accomplishments. But his interest in judicial nominations appeared almost to have begun with Sonia Sotomayor and ended with Elena Kagan. Obama’s lassitude regarding the lower courts was astonishing. In the summer of 2012, when the Senate more or less shut down confirmations until the election, there were 77 vacancies on the federal bench out of a total of about 874 judges. At that point, Obama had failed even to submit nominations for 43 of the judgeships, and Republicans will prevent many of Obama’s 34 nominees from coming up for votes. During Obama’s presidency, Republicans engaged in an unprecedented level of obstruction toward Obama’s judicial nominees; they filibustered and threatened filibusters against more judges than Democrats did in the Bush years. But Republicans could hardly be blamed for blocking judges that Obama failed to nominate in the first place. And since Obama almost never discussed the issue in public, Republicans faced no political consequences for delaying or obstructing confirmations. In the early days of Obama’s administration, it was plausible to blame this failure on staffers like Greg Craig or Cassandra Butts; by the end of his term, the only reason could be that the president himself chose not to invest his own time or effort in the issue.
For Obama, and Democrats generally, this failure to engage on legal issues extended to more than just judgeships. To the extent there is a contemporary liberal agenda, it consists roughly of a pallid embrace of the status quo: preserve Roe and affirmative action. (Support for the rights of gay people may turn out to be an exception to this pervasive timidity. Obama did direct his administration to argue that the Defense of Marriage Act violated the equal protection clause, and announced his support for same-sex marriage.) Both Bill Clinton and Obama also displayed a major commitment to diversity in filling judgeships, and their nominees included dramatically more women and minorities than those of Republican presidents. But it was a lot harder to say what these Democratic judges stood for.
Even after the health care case, it is easy to say what John Roberts stands for. He remains a skilled and powerful advocate for the full Republican agenda; he is still the candidate (in robes) of change. Roberts did refrain from embracing the unprecedented extremism of his conservative colleagues in the health care case; on that occasion, the chief justice acted like a true conservative and deferred, as judges have for seventy-five years, to the elected branches of government on issues relating to managing the economy. But it was folly to pretend that Roberts had discovered his inner moderate. He had not changed, except that he was more powerful than ever. The only thing that is certain about January 20, 2013, is that John Roberts will be there to administer the oath of office.
There was some irony in the conservative embrace of originalism, in the insistence by Scalia and others that the Constitution is “dead” and unchanging. With their success, driven by people, ideas, and money, conservatives proved just how much the Constitution can change, and it did. Obama and his party were the ones who acted like the Constitution remained inert; they hoped the Constitution and the values underlying it would somehow take care of themselves. That has never happened, and it never will. Invariably, inevitably, the Constitution lives.