John Roberts's art of war

Obamacare and the Supreme Court

John Roberts's art of war

  by W.W. | IOWA CITY 

AS PETER SUDERMAN of Reason put it, "Some coup". The individual mandate passes constitutional muster after all. Crisis of legitimacy averted! Akhil Reed Amar's life has not been a fraud!
However, according to the majority decision by John Roberts, the Supreme Court's conservative chief justice, the mandate cannot be justified on commerce-clause grounds. Indeed, Mr Roberts wholly affirms the argument that the commerce clause cannot regulate economic inactivity. From the syllabus of the decision:

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. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

This amounts to a sizable, if weird victory for the conservative and libertarian legal theorists who vigorously pushed this line of reasoning. However, according to the majority, the penalty meant to give the mandate teeth does fall under Congress's undisputed power to tax. "[I]t is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity", Mr Roberts writes. Thus the court manages to defer to Congress whilst explicitly contradicting an expansive reading of Congress's power to regulate economic activity under the commerce clause. And so the needle is threaded.
Had Mr Roberts sided wholly with his conservative brethren on the court, the decision would have been absolutely devastating to liberal ambitions. Obamacare and the longstanding liberal interpretation of the commerce clause would have been left in shambles. Why didn't Mr Roberts pull the trigger? Because he's conservative. And he's very smart.
Though I disagree with his jurisprudential judgment, I think Jonathan Chait has the big picture's contours mostly right:

The fearful part is that five justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading — if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce. By endorsing this precedent, Roberts opens the door for future courts to revive the Constitution in Exile.
But Roberts will do it by a process of slow constriction, carefully building case upon case to produce a result that over time will, if he prevails, rewrite the shape of American law. What he is not willing to do is to impose his vision in one sudden and transparently partisan attack. Roberts is playing a long game.

But it would be unfair to attribute his hesitance solely to strategy. Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled. The long-term war over the shape of the state goes on, but the crisis of legitimacy has been averted. I have rarely felt so relieved.   

I would phrase this rather differently. Mr Roberts genuinely thinks continuity, stability, public approval, and a posture of deference to the legislature are crucial to the healthy functioning of the judicial branch. The members of the court have more room to move, more freedom to interpret the constitution by their independent lights, when they are not the subject of an angry, divisive public debate that loudly calls into question the independence and legitimacy of their institution. Mr Roberts observed the livid reaction to Citizens United, as well as the liberal freak-out over the mere possibility of a ruling striking down Obamacare, and determined that prudent custodianship of the court called for a light, conciliatory touch. Indeed, my hunch (and none shall doubt my amazing intuition!) is that Mr Roberts may well have chosen to join his conservative colleagues had the court not lost so much public goodwill following the Citizens United decision.
Mr Chait's thought that Mr Roberts sought to avoid "a world in which he and his colleagues are little more than Senators with lifetime appointments" is more than a little ironic, given that in his decision Mr Roberts rather straightforwardly legislated from the bench by offering and affirming a construction of Obamacare which the administration itself rejected. That is to say, Mr Roberts acted exactly like a senator with a lifetime appointment: he elected to advance his agenda in a manner available only to legislators immune from short-term electoral pressure.
By now I think we all realise that "judicial activism" really means "a decision I don't like" and that "crisis of legitimacy" really means "a series of decisions I don't like". Thus, all that was required to avert a looming "crisis of legitimacy" was to uphold Obamacare, for whatever reason, and Mr Roberts seemed to have known it. Mr Chait and his partisan allies clearly dislike the way in which Mr Roberts avoided the "crisis" of their collective tantrum, but the great relief that has now washed over them will be enough to keep them from attacking with full force the "bizarre and implausibly narrow reading" of the commerce clause which Mr Roberts just embedded more firmly in constitutional law.
Some coup. Sun Tzu style.