Posted by Rojas @ 6:38 pm on June 28th 2012

Justice Roberts’ long game?

I don’t want to descend into Sullivanesque wishful thinking about the brilliant strategies of political figures, but there have been a couple of observations regarding the SCOTUS health care decision that are worth mentioning here.

First: there is very compelling evidence that the initial SCOTUS vote was 5-4 to repeal the PPACA and that Roberts changed his vote after conference:

After a preliminary read of the opinions in the Health Care Cases (National Federation of Independent Business v. Sibelius), there seems to be substantial evidence that the initial vote in conference was to strike down the mandate as unconstitutional. The opinion of Justice Scalia, Kennedy, Thomas, and Alito looks like parts of it were once a majority opinion. And there are passages that still read as a majority opinion responding to a dissent by Justice Ginsburg.

Did he do this, as progressives would have it, to preserve the court’s credibility? That seems unlikely given that public opinion runs 60-40 against the PPACA. Ezra Klein suggests that Roberts was pulling a Marbury v. Madison strategy: give the other side what it wants at a superficial level, but hide the important precedent for future application inside the decision. Specifically, Klein suggests that the court has established a precedentially relevant 5-4 majority that will prevent future use of the commerce clause for most purposes:

By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.

But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.

The counter-argument is that the expansion of apparent “taxation” authority makes the commerce clause restriction meaningless; Congress will simply choose to economically penalize any behavior which would cut against the government’s new authority. Yet Roberts put some very specific language into the decision regarding the limits of this new taxation authority (see pages 41-44 of the decision proper).

There is at least a case to be made that this was an instance of surrendering the battle in order to win the larger war. And, moreover, there is the matter of Obamacare still being on the table as a political rallying issue for conservatives, with “squishy justices” as a new angle to be played. We shall see.


  1. Slate magazine doubles down on the “you tricky bastard” theory:

    Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

    Comment by Rojas — 6/28/2012 @ 6:46 pm

  2. Started hearing this a lot later yesterday. I’m not sure I buy it, although with these things, time will tell.

    It looks certain that Roberts switched his vote very late in the process, that Kennedy et al thought they were writing a majority and that Ginsberg et al thought they were writing a dissent (they both explicitly say so in the text). That would be a very very fascinating backroom story that hopefully historians can suss out.

    However, as to this being a restriction of federal authority, I am not disinclined to believe that Roberts may have thought so, but it actually playing out that way in practice I don’t necessarily buy. It is significant that that the court effectively ruled, 5-4, that the Commerce Clause can’t be stretched this far, and the Necessary and Proper clause doesn’t cover it either. This is certainly not a rubber stamp decision in that regard.

    However, given Roberts hedging all over the place, taking that forward as precedent is going to be very very difficult for any federal judges. Honestly, the first time this gets tested in any significant way, it will likely still have to wind up back at the Supreme Court for clarification. Because let’s remember the limit here – the ONLY expansion of the Commerce Clause interpretation they struck down was this case that they then go out of their way to define as enormously weird. The justices did not ROLL BACK Commerce Clause interpretation, they just decided to not expand it this step further. So everything up to but not including a national health care system is still okay, which is basically everything.

    As to HOW to expand federal authority that step further, Roberts gave any justice wishing to follow in his footstep a de facto imprintur to do so (game-playing, essentially, with mechanism), and any justices NOT wishing to do so no clear precedent strong enough to strike something down with (without, again, it having to go back to SCOTUS for further clarification). To put that another way, can you imagine any case of national significance that a 4th circuit judge would feel comfortable taking the Roberts opinion-of-one on as precedent? I can’t. And I certainly can’t in a way that would stand up without further appeal and SCOTUS review. And all this, meanwhile, while ACA settles in as settled law and Congress is suddenly granted NEW powers regarding taxation (meaning, the policy implications here become the new normal for awhile, such that when this goes back to SCOTUS, they no longer have the added incentive of something being new and weird in terms of the expansiveness of federal authority, but rather it will be the status quo, which is an underrated and highly important psychological matter for jurisprudence).

    Trying to imagine how this plays out, if you’re a federal judge tasked with hearing appeals to challenges of federal authority, this looks all the world like a 4-4 decision, with one 4 saying there is absolutely no restriction, that it’s a blank check, one 4 saying it is not a blank check (but losing on trying to apply that reasoning in practice), and then Roberts stepping out defining one special exception.

    For all the world, I think the best case scenario here is that it’s kicking the can down the road on the fundamental questions. At worst, it’s Roberts shooting the cause in the foot by trying to be too cute by half. I am leaning towards the latter.

    Comment by Brad — 6/29/2012 @ 2:48 pm

  3. I also think, just to reiterate my parenthetical comment, that we underestimate the normalizing effect of these sorts of things at our peril. Whatever Roberts may have intended, the end result that seeps into the American consciousness is the authorization, not the restriction, of the federal government’s authority in this matter and all like it.

    I really, really don’t mean this as hyperbole, but as plain fact: we live in a country where there is no institutional or inherent check on what power the government has, if the political will is there. And, again, I don’t even mean this necessarily as a sky-is-falling value judgment, but just as an observation: our original constitutional experiment, as Madison et al envisioned, is over. Hopefully whatever new experiment the American experience has evolved into over the last 80 years serves us well.

    Comment by Brad — 6/29/2012 @ 5:05 pm

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