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