Over at the Federalist Society’s new blog, SCOTUSreport.com, Steven Teles has a very interesting post on the Chief Justice’s opinion in NFIB v. Sebelius. A taste from the conclusion:
[M]y guess is that Roberts would have joined a decision more or less striking down the mandate but severing it from the rest of the law, but he couldn’t get the rest of the four justices to go along with him. So he ended up having to cut a deal with the liberals. My sense is, as I noted before, that as an institutional matter justices have some sense of how far they can legitimately push on the political branches, and they make that judgment and then figure out a legal rationale to back themselves up (this is true on the Court’s more high-profile cases—I do think on some of the more boring but very important legal plumbing work the Court does, that there’s such a thing as actual legal craft that influences decision-making).
Roberts, no doubt influenced by his position as Chief Justice, made the call that he could pull at the seam of the law pretty hard but couldn’t unravel it completely. Doing so really would put the Supreme Court in a state of outright war with the Democratic Party. There is an element in Supreme Court decision-making that can be explained by statesmanship rather than jurisprudence. Law professors are unlikely to be very impressed with that element, but it’s a real, permanent and unavoidable aspect of our system of government. On no really important aspect of jurisprudence did Roberts actually break from his conservative brethren, but he did make a different political judgment than they did—not on what the Court could get away with, but what was really appropriate for it to do on a matter of such great policy significance.
Conservatives may not like that, and Roberts may have been wrong in his judgments as a statesman. But talking about his decision as if he had a choice not to exercise statesmanship of some sort, and decide the case as if he was writing a third-year con law honors paper, is silly. Roberts had a burden of responsibility that conservative talking heads do not.