Why We Should Leave as Little as Possible for John Roberts To Decide

The law, lawyers, and the court.
July 3 2012 11:36 AM

The Mystery and Mystique of John Roberts

And why we should leave as little as possible to the chief justice to decide.

Chief Justice John Roberts.
Chief Justice John Roberts with his wife Jane at the White House in Washington, D.C. on June 7, 2011

Photograph by Yuri Gripas/GettyImages.

Read the rest of Slate’s coverage on the Supreme Court upholding the Affordable Care Act.

The health care case is decided but the jury, it appears, is still out on John Roberts. Depending on who’s doing the talking, the chief justice is either a statesman or a coward; a pragmatist or a patsy of the liberal media; a modern John Marshall or another David Souter (whose moderation on the bench made his name, to conservatives, the foulest of epithets); and his willingness to save President Obama’s signature accomplishment is either an act of courage or, according to certain right-wing commentators, “cognitive dissociation” caused by antiepileptic drugs.

Whatever else he might be, John Roberts is a Rorschach test (as my friend Dahlia Lithwick has described the health care opinion itself). We squint our eyes at Roberts and see, in blurry but corporeal form, our deepest hopes or fears about his court and judges generally. That is why reactions to his decision on the Affordable Care Act have fallen into two familiar archetypes—competing caricatures of judges either as oracles of truth and wisdom, or “junior varsity politicians,” as Justice Stephen Breyer has put it (in contesting the charge). Both notions have their obvious appeal, but they tend to obscure rather than illuminate the work of judges, and the role they should play in our system of self-government.


The groping for credible explanations of Roberts’ decision, and the resort to easy, flimsy ones, is understandable. It can be maddeningly difficult, even impossible, to know what drives a judicial decision. Supreme Court justices speak to us primarily through their published opinions, but the reasoning in those opinions is often unclear or inconsistent. What Roberts delivered last week was especially so. The chief justice wrote, in a real sense, two clashing opinions: one expanding (or at least tolerating) federal power when it takes the form of a tax, the other likely to restrict federal power under a novel and, in the view of most constitutional scholars, artificial reading of the Commerce Clause.

It is a mistake to think we can divine, from these clues, how we got here—or, as a result, where “here” actually is. The report that Roberts switched his vote, holding fast with his new liberal allies despite “relentless” lobbying by Justice Anthony Kennedy, is gripping stuff; it appeals to our very healthy interest in what goes on behind that red velvet curtain. But in the end it only heightens the mystery about Roberts’ motivation. The unsatisfying truth is that we will probably never know why he did what he did. Was it out of concern for the legitimacy of the court? Was it out of compassion for the tens of millions of Americans who would otherwise lack health care coverage? Or was it, as some have surmised, a shrewd sort of self-inoculation against charges of partisanship—in advance of a Supreme Court term that may mark the end of the Voting Rights Act and race-conscious affirmative action?

Even Roberts may not know for sure. Like all judges, he is a human being, and human beings do not, as a rule, enjoy complete, unfettered self-awareness. “Who knows what causes a judge to decide as he does?” shrugged a previous Justice Roberts—Owen J. Roberts, the swing justice who, in 1937, made the “switch in time that saved nine,” joining the liberals and thus ending the court’s blockade of the New Deal. “Maybe,” Owen Roberts quipped, “the breakfast [the judge] had has something to do with it.”

Today, 75 years on, historians are still arguing about what or who swayed Owen Roberts: legal principle, political pressure, or personal ambition. Seventy-five years is a long time to speculate. So perhaps we should call an early end to the guessing game about the Roberts of our era, put away our inkblot test, and see the confusion he has just engendered for what it is: a reminder of why we should leave as little as possible for judges to decide.

Roberts’ bipolar opinion in the health care case—good cop and bad cop both at once—followed by his retreat to Malta, a place he jokingly describes as an “impregnable island fortress,” may be perfectly consistent with his constitutional role, but it is a heck of a way to settle questions of national policy. It underscores the degree to which judges are answerable to no one, save to their own conscience and their notion of the Constitution—even when they are unable to clearly articulate it.

This is not to suggest that the court become anybody’s rubber stamp. Judicial independence is, or can be, perfectly consistent with judicial restraint. The enduring significance of the “switch in time” was not that the court suddenly upheld the New Deal, but that the court recognized the wide latitude that the Framers gave Congress in the form of the Commerce Clause, and ended its practice of adjudicating economic arguments that were better left to the accountable branches of government.

What’s truly troubling about Roberts’ opinion is not what it says about the man or his motives, and it’s not the muddled result of his reasoning; it is the impression, hard to escape, that under this chief justice, the court is back in the business of second-guessing the economic policy decisions of the people’s elected representatives.

Jeff Shesol is the author of Supreme Power: Franklin Roosevelt vs. The Supreme Court and is a former speechwriter for President Bill Clinton



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