Today the Chief Justice, joining with the four moderate members of the Court, voted to uphold the Affordable Health Act. National Federation of Independent Business v. Sebelius.
So why did Chief Justice Roberts vote for the Affordable Care Act? Is it possible that he legitimately believes that the taxing power is essentially unlimited? That is what we learned in law school. It is what he would have learned from his Constitutional Law professor at Harvard, Laurence Tribe. (To see Tribe’s take on the opinion, go here.)
My sense of Roberts is that although he considers himself to be a conservative, I don’t think that he sees himself as a “movement” conservative in the sense that Scalia and Thomas (and Alito) clearly do.
To see the difference, consider the votes in the “Stolen Valor” case, also decided today. That case dealt with the Constitutionality of the U.S. statute that makes it a federal crime to claim to have military honors that you don’t in fact have. Suppose, for example, that a job applicant claims to have earned the Silver Star in combat, and it is later discovered that he didn’t. Without the “Stolen Valor” Act, all that you could do is say, “What a jerk.” This was seen by First Amendment scholars to be a classic — and straightforward — example of the old notion that the government cannot regulate speech, at least unless the speech represents a clear and present danger of serious harm. The two examples of speech that might be punished based on the content of the speech are falsely shouting “Fire” in a crowded theater, causing a panic, and printing correct information in the newspaper about when troop ships were sailing, exposing the soldiers to danger from saboteurs and submarines. That’s the sort of danger that the Supreme Court has had in mind. Causing people to get upset with you because you claim to be a hero when you are not is hardly of that order of harm. The Court today struck down the “Stolen Valor” Act, 6-3. United States v. Alvarez.
Alito, Scalia and Thomas dissented, with a dissent that was long on patriotic rhetoric and short on legal analysis. In a First Amendment scheme where a Nazi parade through Skokie, Illinois, is constitutionally protected, the dissent should be an embarrassment to the law clerks who had to work on it. Any Constitutional scholar who values the John Stuart Mill rubric that the cure for bad speech is more speech, not less speech, would recognize that this statute was unconstitutional. Roberts, on the other hand, joined the plurality in an opinion that does the hard work of providing the standard First Amendment rationale for permitting even odious speech. This is a very mainstream opinion. It is what Roberts would have learned in law school. He graduated from Harvard Law School in 1979; the Skokie Nazi case — National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977) — was decided at the end of his first year of law school, and would have been a hot topic in his second-year course work on Constitutional Law, and would have been the subject of endless debate on the staff of the Harvard Law Review, on which Roberts was serving. (The details of that analysis will be the subject of another post.)
The point of the digression into First Amendment law was this — the “movement” conservatives who wrote the dissent were writing as though they were writing a committee report in Congress, rather than a legal opinion. Roberts did not join them in that political document.
Some Court-watchers have noted that Chief Justices usually come to feel that part of their duty is to guard the institution of the Court. The Chief Justice is required to supervise the entire federal court system. He writes an annual report on the state of the federal courts. He has to lobby Congress for money for judicial raises, and for the appointment of enough judges and the remodeling of old courthouses. He has to be sensitive to the regard in which the Executive and the Legislative Branches hold the Judicial Branch. Those familiar with Roberts sense that he has been extremely concerned about the perception among the American people that the Supreme Court has become just another political battleground. In a recent CBS News/New York Times poll, the Court’s approval rating had fallen to an all-time low — 44% (still miles ahead of Congress). In particular, only 13% thought that the Supreme Court relied just on legal analysis; 76% thought that the Justices based their rulings on personal political beliefs. Roberts-watchers believed that he would look for a way to keep the Court from being seen as just another branch of the Republican Party. He didn’t want the Court to be THE ISSUE in this year’s Presidential race.
It seems that he did so, by writing an opinion that allowed him to do two things — express concerns about the growth of centralized power and federal authority over interstate commerce, and still uphold the Obama health care bill. Law professor Adam Winkler has written a thoughtful piece for SCOTUSBlog that builds on this theme.
With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president’s signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn’t want to go there.
Relying on the Taxing Power rather than the Commerce Clause has a few consequences.
First, it means that some of the details of the Act cannot be upheld under the Taxing Power. The requirement that states upgrade their Medicaid coverage, for example, is something that could probably have been justified under the Commerce Clause but not under the Taxing Power. Although no one raised this issue, it is likely that the Supreme Court would hold that the requirement that insurance companies cover children up to the age of 26 was not justified under the Taxing Power, but if the Court had relied on the Commerce Clause to uphold the individual mandate, this additional requirement on insurance companies would surely be held to be constitutional. So this was a limited ruling.
Second, by resisting the extension of the Commerce Clause rationale to require that people participate in commerce, Chief Justice Roberts kept alive the argument that there are limits to the government’s power over commerce, leading some already to wonder whether programs such as the Clean Air Act might be challenge-able.
But the most important thing that Chief Justice Roberts has accomplished is that he has kept President Obama from running against the Court for the next four months. And that is no small feat.