The Overruler

Caveat:  This is only a sketch, not even a parable.  The work of understanding the NFIB v. Sebelius moment is barely underway, and takes two forms:  tracing its roots in Roberts's intellectual development, and situating his choice within the n-dimensional space defined by axes drawn in the Thayer / Frankfurter / Bickel / Ely / Posner traditions.  This post does no particular work, except to indicate how uncanny the events of July were.  (Awkward ventriloquism of opinions I happen not to share is purposeful.)

The Overruler became Chief Justice young, with many long-term agendas to pursue.  So many excesses of the Warren era needed addressing, and in principle even a case like Griswold could someday be revisited in the interests of state power.  In the long term, he believed, in many ways state legislatures could readily customize a local legal culture outside the shadow of any penumbras.  They would be accountable to democratic responses.  The dynamism of federalist variation, in which states gradually arrive at consensus in a variety of different configurations, and policy and values square off on a smaller scale, could be unleashed in a number of different doctrinal areas.  Health would return to the democracy with the reinvigoration of federalism.

Opportunities bloomed in every direction:

 curbs on state commandeering; reinstatement of the democratic voice in family decision-making and, potentially, the rights of the voiceless; communities of expression churned by competition and the efficiency of unharnessed speech sponsorship; freedom of contract; color-blind meritocracy.  The ideologies of the Federalist Society could operate above politics to reassert a wide array of lost or faded constitutional values.  Lopez, Morrison, and Printz were ready to be picked up and turned loose.  Citizens United and Parents Involved were good first overrulings.

The Overruler [in this sketchy rendering] actually thought in terms like these, a little stilted to those steeped in politics.  He was not exactly above policy, but believed himself to work at right angles to it.  He was motivated by ideas of constitutional jurisprudence.  

Strange to say:  and no one would have guessed it, since he talked like all his peers:  the Overruler was a true believer in these ideas for their own sake.  Federalism had value of its own, and to him the phrases of states' rights were not stalking horses for Republican politics; quite the reverse.  Electoral politics was, at most, a means for getting down to constitutional business with an eye on the long-term future.  Most of those who had elevated him and those who had worked alongside him would be bewildered by the firewall in his core -- between constitutional results and policy results.  

Brian Tamanaha singled him out as a judge who carried the charade of denying 'legal realism' a bit too far:  "[Judges] occasionally say things that ring false, like Justice Roberts' claim in his Senate confirmation hearing that judging on the Supreme Court is like calling balls and strikes."  The Realism of Judges Past and Present, 57 Clev. St. L. Rev. 77, 78 (2009).  No one, and surely not the justice himself, could take seriously this fundamental distinction between judge and policymaker:  it wasn't realistic.  And sure enough, the ideology of the Roberts Court tracked the Republican party line for many years. 

This sheep wore wolf's clothing, and had a taste for red meat.  No one has figured him out.

No analyst anticipated how deeply the Chief Justice held his beliefs about federalism.  And no one has yet understood how firmly they were rooted in his identity as a jurist:  a judge, not a policymaker.  The umpire, wearing no team's colors.

For the Overruler as for everyone else, the Obamacare case was a golden opportunity.  Overrule Wickard.  Overrule South Dakota v. Dole.  Overrule aspects of Reno v. Condon, and different aspects of Heart of Atlanta Motel.  Overrule Hodel v. Indiana.  Overrule Kahriger.  Make inroads against the depredations of Jones & Laughlin.  None of these overrulings needed to be made explicit, of course.  And none of this would be about turning back the clock on the national economy, nor would it be about reactivating racism and sexism.  (State legislatures would have to be responsive to a modern electorate.)  

In sum, to the Overruler and his entire circle of like-minded peers, NFIB v. Sebelius was a target-rich environment for cases that needed overruling.  And the Federalist Society agenda that drives him is about overruling wrongly decided cases.

And more:  To everyone except the Overruler, of course -- because we are all legal realists now -- to everyone but him, NFIB v. Sebelius also meant overruling the Obamacare Congress.  Everyone, except the Chief Justice, considered this the bottom-line issue.

For everyone except the Chief Justice, severability was a pointless exercise, a temptation of false modesty.  National health-care policy was at stake.  The Overruler was the poster child of the Federalist Society culture, and this was the biggest prize it would claim in many decades.  Once Justice Kennedy came on board, there was a once-in-a-lifetime opportunity to overrule a misguided vision of the heavy-handed government's role, that is, I mean, of the Constitution.  Or the constitution.  In any case, a chance to correct a huge mistake alongside all those other mistakes.  A chance in an election year to move the balance back toward solutions that don't emanate from inside the Beltway.  Overrule the Patient Protection and Affordable Care Act.  Over-rule it:  the ultimate opportunity.  Don't go wobbly.  Over-rule.

And the Chief Justice went along with the culture that had brought him into place to do this job.  He pursued the overruling agenda in all its aspects, including the legislative, -- until, several weeks into the process of writing the opinion overruling the Obama administration's signature legislative accomplishment, he hung fire.

The story wraps up quickly.  In the decision, most of the overrulings the Overruler and his fellow-travelers cared about got done.  But there was something else to it, an act of enormous counter-cultural courage that, to the Overruler, came first.  He saw that if he omitted it, his entire project would take on Faustian undertones.

The Chief Justice saw that he had thirty years on the bench to erode the deciding principles of many decades of erroneous Supreme Court rulings, going back to the thirties.     

And he saw that the first case that needed overruling, in order to advance this agenda properly, did not appear in any of the briefs, or any of the opinions.  The principles that had decided it were hidden very deeply, out of sight, at the heart of the case (and in what would become the dissent).  

Overruling it meant sparing Kahriger; but the deciding principles of this more recent case needed overruling more urgently.  So Justice Roberts overruled it:  Bush v. Gore.