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Tuesday, July 03, 2012

So, did John Roberts Succeed? Some thoughts on being too clever by half.

Thanks to Dan for having me back!

Though I'm not sure I can add much useful insight to the polyphony already out there about the Supreme Court decision in the Affordable Care Act case, the question that's moving me to blog, now that we're a few days out, is whether Chief Justice John Roberts in fact succeeded in his ostensible goal--that is, convincing the nation that this was not a politically or ideologically driven decision and that the Supreme Court is not a political/ideological institution.

Obviously, the disposition of the case did not ultimately break down on ideological lines. No one can dispute that. But at the same time, from this postgame perspective, Roberts's rather cunning opinion appears to me to be more politically driven than it would have if he had just voted with the conservatives. 


First, it's pretty much an accepted fact, among legal academics and, I'm guessing, the public at large--especially after exposés like this one on Roberts's "switch" in time--that the decision was crafted primarily (or exclusively) to achieve Roberts's political goals. Second, it is pretty unpersuasive from a doctrinal perspective. And third, it is almost Marbury-like in its simultaneous giving-and-taking-away of authority from the political branch. 
Ultimately, I doubt the opinion itself will have much staying power--which is another way in which it, ironically, resembles Bush v. Gore (the type of precedent Roberts was presumably trying not to re-create). I guess I just wish that Roberts had done the right thing by, well, doing the right thing--not by crafting the most politically cunning decision since Marbury v. Madison.


Posted by Jessie Hill on July 3, 2012 at 10:07 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink


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Could you elaborate on what's so unpersuasive about the opinion? I think (a) his reading of the statute is persuasive enough, and (b) once he reads it the way he does, his upholding it as a constitutional tax is perfectly persuasive.

Posted by: Asher | Jul 5, 2012 4:06:18 PM

Marc, thanks for the comments. They do encourage me to moderate my position a bit, though I really wonder whether this opinion is going to look better or worse with time. I suppose this post reflects my own gut reaction, but I acknowledge that it may not be universal. As to your other point, of course it may well be an overstatement to say that it was crafted "exclusively" to meet political ends -- but my point is that the craftiness (for lack of a better word) of the opinion itself makes it feel MORE political than a decision to strike down the ACA would have seemed, to me at least.

Shag from Brookline -- Well, I'm not trying to hide my political leanings, in that I think the Court did the right thing in upholding the law. This is the blogosphere, after all -- I don't claim complete objectivity in these posts.

Posted by: Jessie Hill | Jul 5, 2012 12:46:06 PM

What is so dangerous about this decision that we have everyone and their grandmother running damage control from the left? Take the opinion at face value: you get the ACA, you get deference to Congress, and you get an anti-formalist approach to Congressional statements of Constitutional authorization. And yes, you get the fact that this cannot stand on the CC, and so you must take the subsequent step of looking towards other Constitutional provisions.

The Federal government still has essentially plenary authority, and academics get to spill more ink on the CC.

In fact, the only "loss" and the reason that there is so much hay being made here, is that the CJ called this a "tax" and that's bad politics for Obama's reelection. If it weren't for that fact, you wouldn't have this leftist pushback.

Posted by: AndyK | Jul 3, 2012 12:24:42 PM


"I guess I just wish that Roberts had done the right thing by, well, doing the right thing-- "

has me guessing what she thinks was "the right thing." Might it be Curly's "one thing" in City Slickers? Or does "right" suggest her political leanings?

Posted by: Shag from Brookline | Jul 3, 2012 11:51:59 AM

Hi, Jessie -- nice to see you here. I wanted to register a gentle dissent. First, I don't see the connection between switching one's vote and switching it for purely political purposes. People can and do change their minds, and the reasons may be difficult to discern -- they may be partly political, but they may be doctrinal too. Second, the decision is not even a week old. I know that's chronologically an eon in the blogosphere, but there has been almost no 'real' time to assess what CJ Roberts says about the taxing issue, and whatever time there has been has been devoted mostly to the more overtly political features of the case. I do agree that many people have expressed skepticism about the cogency of the taxing power analysis. But that happens with lots of areas of law (e.g., one of our mutual favorites, the Establishment Clause), and people don't generally conclude that the doctrinal features of those cases are totally empty. Don't we need a good bit more time (at least, say, a month or two...?) to chew over the decision before we can conclude that the decision was "crafted primarily (or exclusively) to achieve Roberts's political goals"? Third, and even then, are opinions ever really crafted "exclusively" for these ends? The ends are probably mixed -- political, legal, institutional, etc., no?

Posted by: Marc DeGirolami | Jul 3, 2012 10:23:41 AM

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