John Roberts broke with conservatives to preserve the Supreme Court’s legitimacy

Why Did Roberts Do It? To Save the Court.

Why Did Roberts Do It? To Save the Court.

The law, lawyers, and the court.
June 28 2012 3:51 PM

Why Did Roberts Do It?

To save the court.

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Next—and here I must take my lumps—the opinion rejects the argument I advocated in Slate, that the obscure Anti-Injunction Act requires the case to be dismissed on jurisdictional grounds. Nonetheless, the rest of the opinion embodies the spirit of my earlier argument. Like John Marshall in Marbury v. Madison, the chief justice uses the ACA case to shore up the court’s legitimacy, throw a few sops to his ideological confreres, and deal at least a glancing political blow to the president while avoiding outright confrontation. Like Marbury before it, National Federation of Independent Business v. Sebelius is (to again borrow from historian Robert McCloskey) a “masterwork of indirection.”

Roberts concludes that the individual mandate exceeds Congress’s Commerce Clause power because that clause only allows Congress to regulate existing commerce, not to force unwilling citizens into commercial transactions. This section of the opinion is ideological catnip for libertarians but will have only minor real-world effects since Congress rarely mandates private purchases. In the weakest part of the decision, Roberts argues that the mandate exceeds even the expansive scope of Congress’ power to “make all Laws which shall be necessary and proper for carrying into Execution” the powers granted by the Constitution. Even though Congress thought the mandate was literally necessary to the Act’s other insurance provisions (which are concededly regulations of commerce), Roberts concludes that the mandate is somehow not proper.

But all of this turns out to be just warm-up material. Thirty pages into his opinion, Roberts suddenly pirouettes and holds that the mandate can be upheld as an exercise of Congress’ power to levy taxes. (This will surely give Tea Partiers some succor—and some sound bites: President Obama tried to pull a tax over on the American people, and the Supreme Court called it for what it was.) 


Lower courts—even ones that upheld the mandate as a regulation of commerce—resisted this conclusion, and the justices appeared unimpressed by it at oral argument because Congress chose to label the mandate a penalty, not a tax. And Roberts admits that it looks more like a penalty. Indeed, this entire portion of the opinion, unlike what comes before, reads as if Roberts’ heart is not fully in it: It is dutiful, more like a brief written for a client than a judicial broadside fired from the hip. But it makes all the right moves: The mandate operates like a tax. Labels are not dispositive when it comes to sources of congressional power. And, most important, the court has a duty to construe statutes so as to rescue them from unconstitutionality—a duty that, as Justice Louis Brandeis understood, is grounded in the need to preserve the court’s institutional legitimacy. From every perspective—political, institutional, and even legal—the tax-power holding is a brilliant compromise.

The rest of the opinion, striking down Congress’ threat to eliminate all Medicaid funding to states that refuse to expand eligibility, is the most surprising. Although based on the common sense notion that Congress shouldn’t be allowed to bribe states by making them offers they can’t refuse, it fails to provide a yardstick by which to measure such coercion. My hunch is that this holding will be read narrowly and will not imperil the many “cooperative federalism” programs that already exist, from No Child Left Behind to Title IX to the Clean Air Act. But it is only a hunch.

In any case, the individual mandate was the main event. And it survives, thanks to the vote of John Roberts. We may never know whether Roberts initially sided with the challengers and then “switched in time,” like a famous Justice Roberts of the past, or whether he always intended to save the ACA. Either way, the country—and the court—should be happy he did.

David L. Franklin teaches constitutional and administrative law at the DePaul University College of Law.