Conservatives do not usually support Orwellian political tactics, but many of them are evidently willing to make an exception for John Roberts, judging from the “two minutes hate” to which the chief justice is being subjected in the wake of his decisive vote to uphold the controversial “individual mandate” of the Affordable Care Act. “Hate” is, admittedly, an exaggeration; but the conservative criticism of Roberts has certainly gone well beyond principled and respectful disagreement. Roberts’s critics claim that his reasoning in the case was so bad that he could not possibly have believed it. They say that he must have (at best) caved in to the political pressure or (at worst) decided to reinvent himself as a moderate so as to win the praise of the country’s liberal elites. And, they add, consider the costs of his betrayal: his opinion opens the door to all manner of government regulation under the auspices of the taxing power.
One need not agree with what Roberts did to find this line of criticism vastly overblown. Moreover, to allow the criticism to go unchallenged is to allow the undermining of the conservative movement’s credibility in calling for a non-political judiciary.
The concern that Roberts is “growing in office,” that he is morphing into the kind of “moderate” jurist who can be praised in the pages of the New York Times, is very premature. Earlier this term Roberts led and spoke for a unanimous Court in repudiating the Obama administration’s unduly narrow understanding of religious liberty. The Court has been criticized relentlessly by liberals for its ruling in the Citizens United case two years ago, so, if Roberts were susceptible to pressure, one might have expected him to use the occasion of a state case this term to, if not revise Citizens United, at least explore some limits to its scope. Instead Roberts led the Court in issuing a very terse—one paragraph—reiteration of the validity of the initial ruling and its applicability to state law. Finally, Roberts joined and wrote for the dissenters in Miller v. Alabama, in which the Court majority declared unconstitutional mandatory life sentences for juvenile offenders, even those who have committed murder. Here, surely, was a case tailor-made for a political justice who wanted to parade his empathy to win the applause of right-thinking liberals. But Roberts would have none of it.
What, then, of Roberts’s vote and opinion in the health-care case? While one need not agree with it, and while the conservative disappointment over it is certainly understandable, it is not the sorry performance that Roberts’s most rabid critics pretend. That is, despite the rage of the conservative commentariat, Roberts’s argument is one that could have been made by a conservative jurist seeking to adhere to a properly deferential posture toward the elected branches of government.
Considerable ire has been directed at Roberts not only because of what he did, but because of the way he did it. He concluded, to the approval of conservatives, that the individual mandate was unconstitutionally in excess of the commerce power, but then turned around and argued that it could be upheld under the taxing power of the federal government. Thus, his critics complain, he authorized the provision under the auspices of one power when the government had justified it principally under the auspices of another power. But what of that? Are conservatives—who claim to favor judicial restraint and deference to the elected branches out of respect for democratic self-government—to commit themselves to the position that the Court should strike down laws that are within the government’s authority merely because the government invoked the wrong grant of power when it wrote or defended the law? Perhaps this would be justifiable in some cases, but declining to do so is hardly outside the bounds of judicial restraint traditionally understood.
In The Civil Rights Cases (1883), the Supreme Court struck down some provisions of the Civil Rights Act of 1875. The provisions in question prohibited racial discrimination in “public accommodations”—theaters, inns, and the like. The Court found the law unconstitutional because it had been passed pursuant to Congress’s authority to enforce the terms of the Fourteenth Amendment, but, the Court noted, the Fourteenth Amendment only prohibits racial discrimination carried on by states, not private businesses. In his dissenting opinion, John Marshall Harlan pointed out that the Court might have upheld at least those parts of the act that regulated interstate commerce. He asked: “Has it ever been held that the judiciary should overturn a statute because the legislative department did not accurately recite therein the particular provision of the constitution authorizing its enactment?” In acting much like Harlan, Roberts may have erred, but he surely was not on totally indefensible ground. Indeed, as Joel Alicea just noted in Public Discourse, until recently many conservatives would have taken Harlan as a model of commendable judicial restraint.
But, insist his critics, Roberts did not merely uphold the law under an alternative source of power, he had to resort to tortured reasoning to do so. The chief justice, this argument runs, “rewrote the law” in order to make it a tax so that he could uphold it under the taxing power. This argument is less powerful than is believed by those repeating it. Roberts may have rewritten the constitutional rationale for the law, but it is hard to see how the law itself was rewritten when it will operate the same in practice no matter what he said about it. The same goes for the complaint that Roberts’s opinion, by transforming the mandate from a penalty to a tax, creates a judicially imposed tax. This is hyperbole. No fair reader of the case can miss seeing that the mandate, whatever it is called, is authorized not by the judicial power but by the act passed by Congress.
Besides, it is not as if Roberts had no grounds whatsoever for interpreting the mandate as a tax. Admittedly, the law repeatedly refers to the mandate as a penalty. On the other hand, some of the framing of it seems reminiscent of a tax. It is collected by the IRS, paid along with one’s taxes, and the amount of it depends on one’s taxable income. In fact, Congress, by its own poor behavior, put the Court in a difficult position. Those who wrote and supported the law intended the mandate as a tax, but for purely political reasons—to duck the charge that they had voted to increase taxes—they wanted to frame it as a regulation of commerce. Accordingly, the final product contains sufficient ambiguity that different justices could reasonably interpret it differently. And, given that ambiguity, a conservative justice, committed to judicial restraint, could reasonably have chosen to prefer the tax interpretation, despite the objections to it, precisely on the grounds that it opened a path for upholding the law, which is what judges are supposed to do if they can do so within reason.
Many conservatives have complained that if the mandate had been presented straightforwardly as a tax from the beginning the law might never have been passed, since the tax label would have frightened away votes that were essential to passage. Only by a kind of subterfuge—pretending that the tax was a penalty—could the mandate be enacted into law. This is a reasonable interpretation of the political history of the Affordable Care Act, but it should be of no interest to members of the Supreme Court. The Court’s proper concern is with whether Congress had the authority to do what it did. Dishonesty in how individual members chose to present the law to the voting public is a form of political misconduct that calls for a political remedy: namely, voting them out of office and repealing the law.
Conservative irritation with Roberts arises also from the supposed effects of his supposed betrayal. By reinterpreting the mandate as a tax, some say, he has laid out the blueprint for a radical expansion of the power of the federal government. Now Congress can just impose taxes on whatever activities, or even inactions, it wants to discourage. We need not dwell on the contradictory character of the various lines of criticism: on the one hand, taxes are politically toxic and can never be passed openly, and, on the other hand, future Congresses will be utterly free to impose whatever taxes they want with a regulatory purpose. More to the present point is that the supposed expansion of federal authority is not really an expansion and is not John Roberts’s doing. The power to tax has always been understood as vast precisely because the Constitution grants it quite clearly and gives little in the way of judicially enforceable language by which it could be limited by courts. To suggest that truly conservative judges must reject an expansive reading of the taxing power is to say that courts should be deciding what is and what is not a proper object of taxation, a giant leap in the direction of government by the judiciary from which conservatives should flee.
Roberts’s critics on the right also suppose that if he had not reinterpreted the mandate as a tax, then it would have had no constitutional leg to stand on. That is, they think that if it had been properly understood, as a purported regulation of commerce among the states, then it would simply have to fall as obviously exceeding the scope of the commerce power. The chief justice’s critics are mistaken even here. Let me hasten to add that I do not mean that they are wrong to think the mandate is unconstitutional. The arguments against it are reasonable and might persuade a serious person. They are wrong, however, to think that the argument against the mandate as a violation of the commerce power is so rock-solid that it would have to persuade any judge who deserves to call himself a conservative.
As a regulation of commerce, the mandate alone is certainly questionable. Its critics are correct to emphasize the strangeness of compelling commerce merely to regulate it. The mandate, however, is not a stand-alone provision. It is part of a much larger law the primary purpose of which, no one can deny, is to regulate commerce among the states. The mandate can be understood as ancillary to this larger scheme of regulation and therefore as authorized under the necessary and proper clause in relation to the commerce power. Roberts himself did not accept this line of reasoning, but it is such as might convince a judge committed to judicial restraint and deference to the elected branches of government—even if that judge thought the Affordable Care Act the most misguided and illiberal legislation in recent memory. Conservatives who find such thinking unacceptable might remind themselves that it was not Earl Warren or Charles Evans Hughes but John Marshall, the Great Chief Justice, who noted in Gibbons v. Ogden (1824) that abuses of the commerce power are to be corrected not by the courts but through the political process.
The point of these remarks is not so much to defend John Roberts personally, although I do think much of the criticism of him has been unfair. My point is that this tantrum on the right undermines the important conservative cause of restoring the proper understanding of the judicial power, an understanding according to which the Supreme Court should be an apolitical institution dedicated to enforcing the minimal and clear requirements of the Constitution.
Already the criticism of Roberts is being paired with criticism of the Republican Party for improperly vetting its judicial nominees. Such vetting is, of course, entirely proper and essential to elevating only those judges who are genuine constitutionalists. The country now groans underneath the rule of whole areas of constitutional law that are nothing more than fictions invented by liberal judges and then falsely presented as somehow “required” by the Constitution: the “right of privacy,” the misinterpretation of the Establishment Clause to expel religion from the public sphere, the hijacking of the Equal Protection Clause as a vehicle for gay rights, to name a few. These are transparently political inventions, devised for no other reason than to secure policy outcomes that liberals desire and that they could not hope to secure at the polls. Conservatives are perfectly right to insist that no judges be confirmed who accept such claptrap.
But what kind of improved vetting are we now demanding in the wake of the Roberts vote? A vetting that will ensure that the potential justice will adopt the more damaging statutory interpretation when it is necessary to invalidate liberal legislation? Or a vetting to make sure that the potential justice will adhere to a narrower interpretation of the commerce and taxing powers, despite the absence of constitutional language on which to hang such interpretations? This, it is to be feared, is exactly what some angry conservatives wanted from Roberts and will want from future justices. But to insist on such jurisprudence and to demand such a vetting in its service is simply to confirm the liberal taunt that conservatives really desire not an apolitical judiciary but a judiciary politicized in favor of conservative policy outcomes.