I understand the disappointment that Chief Justice Roberts did not join the dissenters to hold the individual mandate unconstitutional. Whether or not the Chief Justice changed his vote, or was convinced of the proper outcome throughout, Matthew Franck cautions commentators about attributing political or other non-judicial motives to his decision.
Last week, in poking fun here at Yale’s Akhil Amar, I was also making a serious point. Liberals who were all keyed up to demonize a conservative 5-4 decision against ObamaCare were committing the classic fallacy of the false dilemma, supposing just two possible alternatives when there are more than two. They were so convinced of the slam-dunk character of their own arguments for the law’s validity that, for them, the only possible explanation for overturning it would have to be that the justices in the majority behaved politically—and by “politically” read “abjectly partisan in the most craven sense.” What they did not seem willing to credit is the obvious third possibility, that the justices could have a good-faith view of the Constitution’s meaning that differs from their own, even if it does not in the end persuade them—and that no “stick it to Obama” motivation was behind their decisions.
Now I find, amid the pandemonium of commentators on yesterday’s ruling in NFIB v. Sebelius, that much the same fallacy of the false dilemma, with some interesting variations, afflicts many of the critics of Chief Justice Roberts on the right, and even some of the commentators who praise him on both left and right. That is, the chorus seems to be “the chief justice behaved politically,” and then that putative behavior is either praised or blamed. Almost (but not quite) universally, there is a refusal to credit the possibility that Roberts meant and believed everything he said in his opinion yesterday, and that he was simply doing what he thought was his duty in the case at hand, regardless of the immediate political situation, or even the long-term future of the Court’s reputation or power in our constitutional system.
As I noted in my SCOTUSBlog commentary, this is hardly the first time the Chief Justice has embraced a strained interpretation of a statute in order to preserve its constitutionality. See, e.g., NAMUDNO v. Holder. Jeffrey Toobin’s reporting suggests he initially sought to steer a similar course in Citizens United, rejecting the FEC’s sanction over the Hillary video but otherwise leaving the relevant law and precedents intact, only to abandon the effort when no other justice would go along. If the Chief Justice is a judicial minimalist who also seeks unanimity, this is what we would expect. (Does any justice write solo opinions less often than the Chief?)
I don’t find the Chief Justice’s opinion persuasive. My colleague Erik Jensen has, to my mind, demolished the idea that the mandate is a tax and I think the Chief stretches the PPACA’s text beyond the breaking point. Yet I think I understand the rationale, and it is largely what we’ve come to expect from his approach to the law and to judging. Disagree with the Chief, and critique his opinion on the merits, but don’t attribute his decision to politics or (worse) cowardice without substantial evidence. He deserves better than that.
UPDATE: In his critique of the Chief, John Yoo compares his decision to the “switch in time saved nine.” Yet Yoo adopts the conventional, albeit discredited, account that Justice Hughes switched his vote on the constitutionality of economic regulation in response to FDR’s court-packing plan. As Barry Cushman’s research has shown, Justice Owen Roberts’ decision in West Coast Hotel occurred earlier and should not be attributed to politics.