Opening Remarks

John Roberts, CEO


John Roberts, CEO

Illustration by Labour

Statesmanship at the U.S. Supreme Court isn’t always pretty. It doesn’t necessarily lead to ringing statements of principle. Compromise doesn’t produce heroes, at least not in the short run. Ask Chief Justice John Roberts, who enraged his usual ideological allies, on the court and off, with a cobbled-together majority opinion upholding President Barack Obama’s health-care overhaul.

We’ll debate for years, if not generations, the ruling’s precise meaning. It did not overturn precedent or establish bright-line rules. (That’s its genius.) Above all, it reflects the thinking of a savvy manager intent on preserving the power of the institution he runs.

The Supreme Court isn’t anything like a company, and Roberts isn’t a chief executive officer answering to a board of directors or Wall Street investors. The nation’s top jurist doubtless would defend his action—and did defend it, in a densely argued 59-page jurisprudential essay—as an interpretation of the Constitution and statutory text. He expressed serious (if vague) principles about the limits of government power and the preservation of individual liberty.

And yet, whatever one’s opinion of Roberts’s conclusions, his motives and thinking make more sense if they are seen as those of an organizational leader insulating his white-pillared establishment from the harsh partisan environment in which it operates. The Supreme Court is stronger today and will wield more influence in the future because of the Roberts health-care opinion. Roberts may have stunned the chattering class by siding with the court’s liberals to uphold the individual mandate. (“It has been so long since a national leader ‘surprised’ us,” wrote a swooning Thomas Friedman.) As an act of institutional self-interest, however, the chief justice’s decision wasn’t so surprising.

A brief recap: Twenty-six states challenged the Affordable Care Act of 2010 on the grounds that Congress lacked the constitutional muscle to mandate that all Americans obtain health insurance or face a financial penalty. The president and his Democratic allies on Capitol Hill had pushed the insurance mandate as a means of financially shoring up the extension of coverage to tens of millions who are currently uninsured. (Requiring coverage in this manner was originally a Republican idea, which Republicans abandoned only when it became central to Obamacare, but that’s another story.)

All the way up to the Supreme Court, the litigation over the ACA focused on whether Congress had overstepped its authority under the Constitution’s Article 1, Section 8, Clause 3 “to regulate Commerce … among the several states.” By a vote of 5-4, the justices ruled that federal legislators had indeed gone too far by forcing Americans to buy a product—insurance—they might not want. “That Clause,” Roberts wrote, “authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.” Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito agreed.

But that wasn’t the end of the matter. Even though for political purposes Obama and the Democrats had refused to classify the insurance mandate as a “tax,” Roberts concluded that “it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.” Such a tax, he added, is constitutionally kosher. On this audacious switcheroo, the surprise saving grace for Obama’s health initiative, a different four-justice grouping—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—supported the chief.

Did Roberts have a change of heart? Or was he simply keeping his options open until the end? After the court heard oral arguments on the ACA last March, Roberts reportedly gave Alito, Kennedy, Scalia, and Thomas some reason to believe that his opinion for the majority would strike down the individual mandate. A few weeks before the ruling, the conservatives realized they were wrong: the chief justice still intended to write the majority opinion, but he would use it to uphold Obamacare, not kill it. According to CBS News, Kennedy waged a “relentless” month-long campaign to change Roberts’s mind, to no avail. The conservatives’ bitterness drips from their joint opinion, which refers to Justice Ginsburg’s concurrence with Roberts’s decision as a “dissent”—even though the outcome favored her side, not theirs.

Roberts has faced some extreme right-wing vituperation for his decision. Glenn Beck started selling T-shirts calling the chief justice “a coward.” Senator Rand Paul questioned the justices’ fundamental role in the three-way federal balance of powers: “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so,” the Kentucky Republican said in a press statement. “The whole thing remains unconstitutional.” Someone ought to bring Paul up to speed on Marbury v. Madison (1803), in which an earlier chief justice, John Marshall, explained that it is the judiciary that has the final word on whether laws are constitutional. That’s how it has worked for two centuries.

Adopting a markedly calmer tone, conservative columnist Charles Krauthammer perceived “one of the great constitutional finesses of all time.” Roberts reined in congressional adventurism under the Commerce Clause, Krauthammer observed, while blunting Democrats’ ability to run against an overreaching Supreme Court. Krauthammer didn’t like the result, but he understood what Roberts was up to.

In a polarized moment, Roberts relied on a time-tested rule of statutory interpretation, one rooted in judicial modesty. To explain the idea, he invoked Oliver Wendell Holmes, who in 1927 wrote that “the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Applying this sensible, if un-sexy standard, Roberts said: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

Roberts thus amplified the classic civics textbook idea that voters take their policy concerns—in this instance about the financing and fairness of health care—across the street to the Congress and down Pennsylvania Avenue to the White House. This gesture of humility came in the wake of earlier Supreme Court rulings viewed as highly partisan in nature: Bush v. Gore (2000), in which a conservative majority effectively handed the White House to a fellow Republican, and Citizens United v. Federal Election Commission (2010), in which another conservative quintet, this one including Roberts, knocked down campaign finance restrictions supported by Democrats.

The court’s recent decisions have undermined its image as an institution that stands above the hurly-burly of partisan politics. A poll taken on the eve of the health-care ruling found that public approval of the court had sunk to 44 percent, down from 66 percent in the late 1980s; three-quarters of the respondents said that the justices’ opinions were influenced by personal views, rather than a strict reading of the law. It’s debatable how much public opinion matters to the justices. Even so, since his appointment in 2005 Roberts has strived to forge more unanimity on a court that has made a habit of splitting along partisan lines on important cases. In the most recent term, Roberts established himself, along with Kennedy, as the court’s bellwether, voting with the majority in 92 percent of cases.

Had Roberts led the invalidation of Obama’s signature legislative accomplishment, he would have been branded, rightly or wrongly, a tool of his party. If the chief justice’s leadership were seen to be compromised, the power of his institution would suffer as well. Adopting the logic of a shrewd executive, Roberts recognized that preserving the court’s legitimacy trumped the short-term gratification of pleasing his party. And even as he pulled the court back from the political fray, Roberts still bolstered the Commerce Clause and brushed back Congress with a pitch up under the chin—all in one ruling. Neat work.

In their dissenting opinion, Kennedy and Co. wrote that “in the name of constitutional avoidance,” the majority “creates new constitutional questions.” That’s correct as far as it goes. Roberts did not offer a definitive new understanding of congressional authority. But neither did he endanger the Supreme Court’s credibility. On the contrary, he reiterated that the court has the final say-so on whether statutes pass constitutional muster. What the Roberts opinion reminded me of was Marbury, a procedurally convoluted case in which Marshall struck down a provision of the Judiciary Act of 1789, divesting the high court of the power to hear a case against Secretary of State James Madison, and handing a short-term victory to Marshall’s sworn foe, President Thomas Jefferson. The lasting importance of Marbury was the establishment of “judicial review”—the power to pronounce federal laws unconstitutional—and the confirmation of the Supreme Court as a co-equal branch of government. That is the tradition in which the current chief justice forged his fragile majority.

Barrett_190
Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, tells the story of the Chevron oil pollution case in Ecuador.

Steve Ballmer, Power Forward
LIMITED-TIME OFFER SUBSCRIBE NOW
 
blog comments powered by Disqus