Commentary Magazine


Contentions

The Chief Justice’s Irresponsible Decision

I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.

Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.

Conservatives who are (justifiably) upset with Roberts’ decision shouldn’t understate Roberts’ contribution to conservative jurisprudence. As a good friend put it to me, these three premises are absolutely central to contemporary conservative legal thought—and those arguments are now effective law. For example, his dramatically narrowed reading of the Commerce Clause is now binding precedent. This is no small achievement. Lower court judges cannot countermand it unless the Supreme Court itself does so in a future case. And this particular Court, at least, is unlikely to do that. In that respect, then, Chief Justice Roberts moved the Court in a rightward direction—and, his defenders will say, he did so by showing self-restraint and without igniting a political war.

Perhaps. But in the end, Roberts decided the case wrongly—and one cannot help but believe he did so knowingly.

It seems clear that what animated Roberts’ decision was his determination to (in his mind) protect the reputation of the Court by preventing it from overturning the signature domestic achievement of the Obama administration. If the Supreme Court had overturned the Affordable Care Act, it would rank among the most significant (and controversial) cases in American history. Roberts, a man with modest, institutionalist tendencies, did not want to emblazon the Affordable Care Act in government textbooks forever more.

Which makes his decision understandable—but still, in my mind, ultimately irresponsible. Roberts decided on a pre-ordained outcome; he would uphold the Affordable Care Act by essentially re-writing it—an unusual approach for a man who has in the past insisted that it’s inappropriate for the Court to legislate from the bench.

The main challenge Roberts faced was to jerry-rig a (Tax Clause) argument to get him to where he was determined to end up. He employed specious, result-oriented reasoning in order to achieve an unprincipled—but for him, an institutionally desirable—outcome.

It was simply not his place to do this. And on what may have been the most important decision he is ever called upon to write, John Roberts produced a political, even disingenuous, and too-clever-by-half opinion. (Consider the withering dissent by Justices Scalia, Kennedy, Thomas and Alito to be mandatory reading. “What the government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution,” according to the four Justices. “That carries verbal wizardry too far, deep into the forbidden land of the sophists.”)

Chief Justice Roberts put what he perceived to be the interest of the Court ahead of his fidelity to the Constitution. He ended up doing damage to both.


Join the discussion…

Are you a subscriber? Log in to comment »

Not a subscriber? Join the discussion today, subscribe to Commentary »





Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.