I can’t speak to how the Chief Justice interacted with his colleagues on the Court during the deliberations in NFIB v. Sebelius, or to whether he truly flip-flopped on the mandate or (as Mark Tushnet suggests) he had been the “least persuaded” of the anti-mandate arguments at the initial conference and eventually concluded that it could be upheld. I do, however, think many of the Chief Justice’s critics have failed to recognize how this opinion fits with what we’ve seen from the Chief in his first several years of the Court. Specifically, I believe we can explain Roberts’ vote in a way that is quite consistent with his behavior in other cases and that does not require ascribing political motives to him. While I am not persuaded by Chief Justice Roberts’ opinion, I believe it squares with his overall jurisprudential approach for reasons I first noted here and here, and will elaborate upon in this post.
NFIB v. Sebelius was not the first case in which we saw Chief Justice Roberts embrace a strained “saving construction” of a statute in order to uphold it against a constitutional challenge. He did the exact same thing in NAMUDNO v. Holder. The Chief’s NAMUDNO opinion is quite unpersuasive — unless one believes there is a substantial independent value in avoiding declaring a law unconstitutional. The big difference between Roberts opinion in NFIB and his opinion in NAMUDNO is that in the NAMUDNO seven other justices were willing to go along. Both cases, however, show a justice willing to take liberties with statutory text if the alternative is to strike the statute down.
A second example can be found in Jeff Toobin’s behind-the-scenes account of Citizens United. There, Toobin reports, the Chief drafted an opinion that would have stretched the statute to exclude covering CU’s video, thereby avoiding the larger First Amendment question. While some academics and attorneys had advocated this result, few tried to argue that this outcome was dictated by the statutory text. In CU, as in NFIB, it turned out Roberts was the only one willing to accept this approach. The other conservatives were persuaded by Justice Kennedy to swing for the fences, and the Court’s liberals thought a saving construction was unnecessary to uphold the statute. After reargument, Roberts joined the Kennedy’s opinion invalidating the restrictions, but it appears not to have been his preferred course of action.
Additional evidence of the Chief Justice’s reluctance to overturn statutes can be found in A) his approach to severability — excising no more of a statute than is necessary to cure the constitutional violation (see, e.g., his treatment of the Medicaid expansion and his opinion in Free Enterprise Fund v. PCAOB); B) his hawkish approach to Article III standing, which keeps some challenges to federal laws out of court; and C) his preference for as-applied instead of facial constitutional challenges to statutes (see, e.g., his opinion in Wisconsin Right-to-Life v. FEC). Consider also that the Chief is almost as reluctant to overturn court precedents as he is to void federal statutes. So, for instance, he votes to deny standing in Hein v. Freedom from Religion Foundation, but refuses to overrule Flast v. Cohen, preserving an anomaly in the law of standing. The common thread is that he tries to avoid upsetting established legal rules and creating new law (though he is willing to do so when an issue is squarely presented and other justices will go along).
These cases show that Chief Justice Roberts would rather stretch statutory text that conclude that Congress and the Executive have overstepped their constitutional bounds. Thus it should be no surprise that the Court, under his leadership, has invalidated federal statutes and overturned precedents at a slower rate than under Chief Justices Renquist, Burger, or Warren. Further, the Chief Justice prefers to avoid splintered opinions (a phenomenon he lamented in his Rapanos concurrence) and is reluctant to author a controlling solo opinion.
When John Roberts was nominated to the Supreme Court, many predicted he would be a conservative judicial minimalist. That is, he would have a generally conservative outlook, but would try to decide cases narrowly, avoid disturbing precedents, and defer to the other political branches. Since becoming Chief Justice, this is what it appears Chief Justice Roberts has tried to do. From this perspective, his opinion in NFIB v. Sebelius makes sense. This doesn’t mean I agree with Chief Justice Roberts’ approach — in NFIB I certainly don’t — but I think we can understand it.