Who is Chief Justice Roberts?

Is he the methodic, calculating, conservative revolutionary, that Obama had the foresight to oppose for confirmation to the Court based on his inability to discern what was in the now-Chief Justice’s heart?  Is he the pragmatic conservator of the Court’s institutional capital at the expense of the Court’s obligation to make authoritative constitutional pronouncements?  Or is he yet another conservative appointee driven ever left by mysterious unidentifiable substances in the Washington D.C. water supply?

And what to make of the Court’s decision today upholding Obamacare as a valid exercise of Congress’ taxing power?

Is it an unmitigated disaster that spells inevitable socialistic decline for America — assuming of course Mitt Romney and Orrin Hatch can’t team up on Democrats using the Senate Finance Committee and Oval Office?  Is it a secret long-game win for conservatives masterminded by the Chief Justice at the expense of the unwitting liberals now praising his name?

So many questions to answer, so little time.

Rather than bore you with a treatise, I’ll just give you a few of my thoughts after reviewing the opinions (and trust me, this will be long enough).

1.  This decision is an unqualified loss for conservatives.  Though Roberts may have something of a long game in mind here (see point 4 below), it’s really hard to spin this as a win for conservatives.  Overall, the thrust of the opinion is, “you can find a way to uphold congressional action, even when it’s an unprecedented extension of federal power.”

To be fair, Roberts did throw conservatives some bones in his opinion. For example, it’s clear that he purposefully reached the Commerce Clause issue unnecessarily, in order to send a message about mandates.  His explanation to the contrary was unpersuasive (to me, anyway):

JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that § 5000A can be upheld under the taxing power. Post, at 37.  But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command  that it is necessary to reach the taxing power question.  And it is only because we have a duty to construe a statute to save it, if fairly possible, that § 5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

So it’s a tax only because it’s not a penalty?  Pretty weak . . . and that means he reached the issue to send a message.  Whatever his reasons for upholding, he obviously wanted to make clear that federal efforts to mandate conduct as a way of bootstrapping in to Commerce Clause authority are non-starters.

And one has to acknowledge that Roberts did refuse to countenance an extension of Congress’ spending/commandeering power.  Ultimately, however, it’s hard to see how that does much for federalist types when the practical thrust of his opinion is that even statutes that are written as exercises of the Commerce Clause authority, and exceed that authority, are nonetheless constitutional taxes (even when not denominated that way and denied publicly).  This allows Congress to avoid the political consequences of enacting taxes while pretty much giving Congress the type of unbridled legislative authority rejected under the Commerce Clause.

2.  Robert’s opinion will not make it procedurally easier to repeal Obamacare politically.  Today’s decision may very well have the effect of galvanizing conservatives for the upcoming elections (apparently it’s been a monetary windfall for Mitt), but those claiming (and I’ve seen a few posts on this today) that Justice Roberts judicially declared Obamacare a tax in order to ensure that, under the Democrats own congressional rules, efforts to repeal would be immune from filibuster (that captures the substance if not the precise form of the argument), clearly didn’t read Justice Roberts careful parsing of the difference between statutory and constitutional tax status:

Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.”  Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally.

Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions like a tax. It is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other. Congress may not, for example, expand its power under the Taxing Clause, or escape the Double Jeopardy Clause’s constraint on criminal sanctions, by labeling a severe financial punishment a “tax.”

The Anti-Injunction Act and the Affordable Care Act, however, are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the best evidence of Congress’s intent is the statutory text. We have thus applied the Anti-Injunction Act to statutorily described “taxes” even where that label was inaccurate.

The desperate efforts of conservatives to label this decision a “win” for them remind me of Democrats attempts to rationalize President Obama caving to Republicans on the debt ceiling as grand liberal strategy.

3.  Roberts tax opinion is more persuasive than conservatives want to admit.  Although all the focus leading up to the case was on the Commerce Clause, Roberts’ opinion boils down to this:  constitutional authority to legislate depends on the substance of the legislation and not congressional magic words.  That’s a familiar principle, and persuasive in a number of contexts.  The effect of my contract depends on the written language and the intent of the contracting parties, not on the use of precise words to accomplish specific functions.

Should this be any different?  Well, we do have this sense that Congress should be allowed to use the tax designation as both a sword (justification for enacting authority) and a shield (insulation for political consequences of raising taxes).  But since when has Congress been estopped from legislating?  It’s also a bit surprising that Roberts went different ways on the Anti-Injunction Act and Taxing Power (see quote language above) . . . one felt that if the Court reached the merits of the case it would do so based on the finding that Obamacare was not a tax and therefore would be forced to decide the issue on Commerce Clause grounds alone.  But Roberts neatly worked around that dilemma by  holding that the individual mandate was indeed a tax, just not a tax to which Congress intended the Anti-Injunction Act would apply.

4.  Even though this is a loss for conservatives, there is something of a silver lining.  Between Roberts’ opinion and the Joint Dissent, there is a 5-member majority in support of unusually strong language on Commerce Clause federalism.  The language is so strong, in fact, that it likely forecloses any attempt at “compelled commerce” regulation in the near future.  This means that, if, down the line, conservatives are able to chip away at the rather deferential constitutional construction of a tax and/or expand on the Chief Justice’s anti-commandeering rationale, the field for Congressional action will have been limited.  It seems like Roberts’ opinion might also spawn some new Republican political strategy, like citing judicial authority to justify characterizing every regulation as a tax, or inserting punitive penalties into regulatory laws to sabotage them constitutionally . . . maybe I’m just reaching here, but no question congressional Republicans are committed and creative

5.  Roberts v. Scalia.  In case anyone doubted the sincerity of his commitment to judicial restraint (especially after Citizens United), Roberts’ opinion should allay that doubt (for now).  While Scalia’s commitment is, first and foremost, to originalist interpretation, Roberts’ jurisprudence is (in my opinion) guided to a significant extent by his beliefs about the role of the Court vis-a-vis the political branches and, to a lesser extent, preservation of its institutional capital.  I really think that this is the best way to look at his decision.  Which is the better approach?  I’ll leave that for you to decide . . . .

6.  Another “switch in time”?  Although there is already a healthy ongoing debate over this, it does look (to me) as though Chief Justice Roberts changed his vote relatively late in the process.  It is hard for me to avoid the conclusion that the Joint Dissent (Scalia, Thomas, Kennedy, and Alito) was written by Scalia as a majority opinion.  It contains numerous references to “the dissent,” despite itself being a dissent.  It is also written, like a majority opinion, using the plural “we,” as opposed to the singular “I.”  Here’s an example:

The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government. The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact criminal laws, . . . the power to imprison, . . . and the power to create a national bank.”  Is not the power to compel purchase of health insurance much lesser? No, not if (unlike those other dispositions) its application rests upon a theory that everything is within federal control simply because it exists.

Why were these references left in?  It could because of a last minute switch . . . but I doubt it.  Justice Roberts had to have time to write his opinion, and the Justices and clerks who write Supreme Court opinions are some of the very brightest people around — these edits could have been made no matter how late the change.  So, were they left in purposefully, as a signal to the world of a betrayal by the Chief Justice?  Well, I kind of doubt that as well . . . .  But whatever the explanation, it’s certainly interesting.

7.  Let’s get political!  Thus far in the battle over Obamacare, both sides have alternated being overly optimistic.  Prior to oral argument, quite a few Democrats were contemptuous of the merits of the legal challenge.  After oral argument, conservatives were prematurely dancing on Obamacare’s grave.  Liberals rejoicing today should take into account that it looks (if my sense if correct) like Obamacare was headed down to defeat and was saved only by a last minute defection (that was, in all likelihood, not wholly based on the merits of the case).  Furthermore, there is still a long way to go in the war over national health insurance in America, despite today’s decision.  And, while the Supreme Court will have more of a role to play, Roberts’ opinion, consistent with his commitment to circumscribing the judicial role, ensures that, going forward, this battle will be fought primarily politically from here on out.

Anyway, I’d love to hear your thoughts, whether on the opinion or my own commentary.  Type away — I can take it