How Far Did Roberts Really Stray?

It was always easier to count to five for an opinion upholding the Affordable Care Act than for one striking it down. In order to strike it down, all five of the high court’s conservatives would have to be rock-solid, they would have to stand together on everything. If one of them decided that the individual mandate constituted a tax for purposes of the Anti-Injunction Act, the mandate would stand for now. If one decided that the individual mandate represented a valid exercise of the Commerce power, the mandate would stand. And if one decided that the individual mandate represented a valid exercise of the power to levy taxes, it would stand. Only if all five agreed on all of the major points would the law fall.

Truth be told, the conservative bloc did remarkably well—much better than most observers predicted at the outset of the litigation (though not quite as well as many of those same observers predicted after oral argument). They held together on jurisdiction, and they held together on the Commerce Clause. And only one broke ranks on whether the mandate could reasonably be seen as a tax and whether the Medicaid mandates on the states must fall.  

That was enough, and the result is a huge victory for the administration. But it’s a win that liberals can relish only in the very narrow sense that a specific legislative legacy of the Obama administration has survived.  In a broader sense, this case represents a significant Commerce Clause precedent limiting congressional power. It is an irony for liberalism that nobody will ever cite the majority opinion in NFIB v. Sibelius for a vision of the Commerce power expansive enough to reach the mandate the decision upholds. They will cite it, rather, for the opposite proposition—that the Commerce power is limited and that Congress has to think hard about the limits of its authority when it enacts a program like this one.

The conservative who broke ranks was not the one who most people expected to bolt. Observers assumed that Justice Anthony Kennedy was the soft vote, or perhaps that he and Chief Justice John Roberts would both side with the liberals to uphold the mandate. Very few predicted that Roberts alone, without Kennedy, would provide the crucial fifth vote. Roberts is now, predictably enough, receiving the plaudits of the Left (“This could be a huge day in the evolution of Chief Justice Roberts as a great chief justice,” Laurence Tribe told the New York Times) and the derision of the Right (“Chief Justice Roberts’s Folly,” screams the National Review editorial headline).

I would hold the reevaluations.

I tended to resist the sudden liberal revulsion at Roberts in the wake of Citizens United, and I would caution against any sudden embrace of him by liberals--or excommunication by conservatives--now. We will see, I am sure, endless speculation about his motives--whether he’s thinking about his legacy, about his not wanting to replicate the folly of the New Deal court. I have known Roberts for more than decade, and I don’t pretend to know his motives or to have deep insight into some secret psychology that explains his votes. I mistrust people who think they have developed some unified field theory of the politics or psychology of the court more generally. I have a sneaking suspicion that the explanation for Roberts’s opinion and vote in this case is a disarmingly simple one: He thinks the mandate, while not defensible under the Commerce Clause, is defensible as a tax and he’s not looking for 5-to-4 decisions invalidating acts of Congress along ideological lines where laws can reasonably be reconciled with constitutional authorities to enact them. Roberts is, to be sure, no shrinking violet about ideologically divided opinions when, in his view, the law compels them, but he  apparently has a more flexible view than do his conservative colleagues concerning the difference for constitutional purposes between a penalty and a tax.

In other words, don’t be too surprised if Roberts next terms looks like a conservative again. He actually did not stray very far from where the other four conservatives ended up in this case—just over a consequential line.