John Roberts’s Decision

I had been writing a post speculating on why John Roberts might have joined the progressives to uphold Obamacare in the Sebelius case when I came upon the story by Jan Crawford reporting that Roberts had changed his vote in the case.  That Roberts changed his vote, of course, does not establish why he did so.  But the story does say something about the matter:

But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.  There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. . . . Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.  It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

Some informed observers outside the Court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the President. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law.

The suggestion here is the one that I also thought explained the matter.  The next two paragraphs are from my planned post:

The most likely possibility in my mind is that Chief Justice Roberts sought to uphold the law as a tax as a means of avoiding striking down the central piece of legislation enacted by the Obama Administration and the Democrats.  The idea here is that the Supreme Court and the Chief Justice would be harmed by the negative attacks that would follow the five most conservative justices striking down this liberal legislation.

This motivation is reinforced by the fact that Roberts is the Chief Justice and the Court is known as the Roberts Court.  If striking down Obamacare were the signature action of the Roberts Court, and this were deemed a problematic decision (especially by liberal elites), then this decision would harm the reputation of John Roberts most of all.

If this was Roberts’s motivation for the decision, this is obviously improper for a variety of reasons.  Most importantly, constitutional decisions are not supposed to be reached out of a desire to enhance either the reputation of an individual justice or the Supreme Court as a whole.  The decision is supposed to be based on a justice’s view of the law.

One might add that not only would this decision be based on improper motives, but would also be based on a questionable prediction.  Given the unpopularity of Obamacare, and the strong probability that the Republicans will control at least one of the branches of the government after the election, the Court did not have much to be scared of institutionally in terms of political attacks.  Instead, the most that Roberts would have to fear is criticisms from a liberal elite, but ones that would have been answered by conservatives and libertarians.

But now Roberts may have the worst of both worlds.  If his decision comes to be viewed as a cowardly act done for improper motives, then he will hardly get much credit for it. While he may receive some praise from liberals for a time, that is unlikely to last.  By contrast, he will be strongly criticized by conservatives and libertarians, who are unlikely ever to forget it.

There is the old saying about deciding whether someone is a knave or a fool.  The knave acts out of bad motives, whereas the fool acts from mistaken understandings.  But a knave can sometimes be a fool.  If the knave’s bad motive is a desire for honor, then his action can be that of a fool if he fails to realize that people may discover his motive.  It may yet turn out that John Roberts – known as one of the smartest people in Washington – was both a knave and a fool.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Comments

  1. libertarian jerry says

    Professor………It is a sad commentary on our times when an individual’s Inalienable Rights are decided by 9 men and women on a Court. The various “logical” decisions of the Supreme Court, over the last 100 years, has allowed the creation of the Marxist Income Tax,The IRS,the Social Security numbering,cataloging and record keeping of America’s citizens and now the forcing of medical insurance upon the population. With the aid of modern high speed computers,the American people can now be tracked and followed throughout their lives. The end results of the above are the making of the largest police state in the history of mankind. So much for a “Right to Privacy.” What has happened to America over the last 100 years would make all the tyrants and dictators throughout history blush with envy. And whats next for America? Next is National ID computer chips surgically placed under our skins. Of course it will at 1st be voluntary. And,of course, you won’t be able to buy, sell,trade or work without that ID chip,meaning you cannot survive. And,when challenged,the Supreme Court will find a way to make it legal and lawful. So much for the land of the free and the home of the brave. Welcome to the land of serfdom.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>