John Roberts’ Sits Still

by Sean T. Byrnes

One of the more amusing developments of Thursday’s Supreme Court decision on the Affordable Care Act was the efforts of the nation’s aggressively self policed political movements try to either welcome Chief Justice John Roberts into their fold or to expel him for ideological high crimes and misdemeanors. Conservatives on the one hand, were busy reconciling with the fact that their judicial Queen of Spades might have just switched from trump to liability, “if Roberts believes this tactic avoids damage to the constitution” National Review complained yesterday, “he is mistaken.” Liberals on NPR and in the New York Times, meanwhile, could barely maintain the reserved tone required for their news “analysis” to ponder whether Roberts will prove another Earl Warren or David Souter. It was as if Roberts was sitting at his lunch table, eating and reading (hopefully) how to better administer the oath of office, unaware as the other middle schoolers hurriedly switched tables around him to reflect the new political alignment.

However one pictures it, the image of Roberts sitting still is the proper one. For all the surprise registered at his decision yesterday, Roberts’ ruling was no departure from the judicial philosophy he has long articulated. Indeed, despite upholding one of the more progressive acts of legislation in a generation, Roberts’ judgment was itself fundamentally conservative. And with the ACA’s ultimate fate to be determined in November (for the bill would not survive a Romney landslide that had considerable congressional coattails), it’s not unreasonable to think that the ruling’s conservatism will be remembered as much as what it decided.

To begin with, the decision in National Federation of Independent Business v. Sebelius (an unfortunately clumsy name for a landmark case) was a model of judicial restraint. Conservatives have been talking about this for years and for Roberts at least it appears to truly be a principle – rather than a conveniently universal sounding means for rejecting court decisions one doesn’t like. The Chief Justice refused to overturn a major piece of legislation enacted by Congress as long as it was plausibly Constitutional under existing precedent and understanding of the law (in this case, Congress’s right to levy taxes). Echoing his pragmatically conservative predecessor, Oliver Wendell Homes Jr., Roberts offered that “when a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation.” Thus Roberts avoided finding any new powers or rights (like the infamous “right to privacy” of Roe v. Wade), respecting both the separation of powers and the legislative process. In doing so he avoided the chaos that would come with a summary dismissal of so major – and again, plausibly Constitutional – a law and the resultant undermining of the reputation of the court and the entire Constitutional system. That Roberts would err on the side of Congress should not be a surprise, he warned us of this during his confirmation hearing: “It is not our [the court’s] job,” he said at the time, “to protect the people from the consequences of their political choices.”

But more than simply having a conservative air about it, the decision included two of the more pronounced rejections of federal power that the court has handed down in years. As James Taranto and James Stewart noted for their respective papers, in finding that the individual mandate was only constitutional if understood as a tax, Roberts explicitly rebuked expansive interpretations of the Commerce and ‘Necessary and Proper’ clauses. The font of much Congressional power, Roberts established that that they both had clear limits to their adaptability. His comments on the Commerce clause in particular are worth quoting at length:

“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing.  They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers.”

With its references to the “Framers” and a government of “limited and enumerated powers,” this passage would fit comfortably into the pages of the National Review and should cause liberals fond of the “living constitution” no small amount of concern. Whether Roberts is playing some sort of long game, setting up a conservative Trojan Horse in a decision the left applauds, remains to be seen. But, as Lyle Denniston discussed on SCOTUSblog Thursday afternoon, it seems likely that this will be a precedent cited in future attempts to limit the power of the Federal Government.

But Roberts and the Court did not stop there. By tossing out the part of the ACA where the government was empowered to reduce a state’s existing Medicare allotment if they refused to go along with the bill’s expansion of the program, the court limited Washington’s ability to coerce state behavior. With more liberal justices like Kagan and Breyer joining Roberts on this count, this seems to indicate that the court will now be taking seriously that favored cause of conservatives, states’ rights.

All told – we would do well not to switch lunch tables just yet. However liberal/progressive the law was itself, the ruling hardly indicates – to borrow from Dennis Green – that John Roberts is not who we thought he was. On the contrary, there may come a time when conservatives celebrate, and liberal rue, this as a landmark decision limiting federal powers. Whatever the outcome there, the whole nation should applaud this ruling for its vindication of the democratic process. By refusing to “protect us from the consequences of our actions,” the Chief Justice allowed the hard work of legislation to remain in our hands. Roberts – whether intentionally or not – reminded us that “government of the people” requires the effort of the people. One way or the other, the future of the ACA will be decided by elections and legislation, which is how it should be. Social change by judicial fiat has shallow roots, such things can only sustainably develop through the hard work of persuasion, education, advocacy, organizing and electing. With our political parties obsessed with short-term advantage, our universities and occupy wallstreet-ers often wrapped up in infantile dreams of revolution, and the bulk of the populace enthralled by Howard Stern’s arrival on America’s Got Talent, this reminder could not be more timely.