Was John Roberts Being Political?
At the high court, law and politics come together. It’s the politicization of the court that should make us worried.
Posted Monday, July 2, 2012, at 6:40 PM
Photograph by Mark Wilson/Getty Images.
Read the rest of Slate’s coverage on the Supreme Court upholding the Affordable Care Act.
Jan Crawford’s stunning new story about Chief Justice John Roberts’ alleged 11th-hour switch in last week’s landmark health care challenge brings to the fore what it means for Supreme Court justices to be accused of being “political.” Crawford, based on two sources “with specific knowledge of the deliberations”—possibly from among the nine justices or their clerks—confirms widespread speculation that Roberts did indeed switch his vote to upholding the Affordable Care Act after assigning to himself the opinion striking it. The denunciations of Roberts as self-serving, unprincipled, and astoundingly weak were quick to follow.
Did Roberts act politically in voting to uphold Obamacare? Was it a political decision if his concerns for the reputation of the court shaded his view of the legal merits? Was it political insofar as this decision came from his perspective as chief justice? And what might be said about the political behavior of Crawford’s anonymous sources? This may be a watershed moment in the convergence of law and politics at the Supreme Court, but probably not for the reasons some might think.
There’s a long-standing public debate about whether Supreme Court decisions are informed by law or politics—a debate that regularly breaks into public view in high-stakes cases like the health care challenges. Yet, adopting either position in high-profile cases is perilous. The ACA case itself demonstrates how trite the familiar law versus politics debate can be, failing as it does to account for what the justices must actually do when presented with a politically charged legal controversy in which the decision could go either way.
Suppose, as many had already speculated, Roberts did change his view of the outcome as opinion-writing progressed. And suppose further that, as Crawford reports, he did it conscious of what was being written about the court’s reputation, aware of polling that indicated that the public believed the outcome would be driven by partisan ideology, and worrying how a decision striking the ACA would be regarded. Does this mean he acted on the basis of politics rather than law? It’s not clear this is even a coherent question.
Candor compels conceding that a decision in either direction would have been plausible as a matter of law. That’s almost invariably true in big-ticket cases that reach the top of our judicial pyramid. Contrary to the popular assumption that every single case has an easy answer (one that invariably tracks the speaker’s ideological preferences), these cases get to the Supreme Court precisely because smart people on both sides have come to conflicting results in the lower courts. Consider the deeply contentious Commerce Clause issue: On the one hand, even the joint dissent from the court’s conservatives makes clear the traditional breadth of Congress’s power over commerce, the commercial nature of the market, and the effect not having insurance has on that commercial market. On the other hand, as the challengers urged, regulating “inactivity” in precisely this way was a somewhat novel proposition, and the Republic had survived over 200 years without Congress having to do it. We never thought it was a close case (one of us wrote a brief arguing it wasn’t), but the activity/inactivity distinction—with all the broccoli consumption that entailed—plainly played in the broader public mind.
So, long-standing power meets novel application: Something has to decide the case and it wouldn’t be precedent alone. The precedents did not inexorably decide the question of whether it was constitutional to make national health insurance viable.
What does a justice turn to at moments like this? Some say ideology, and they do so derisively, as though cases are nothing but a left-right political tug-of-war. But when all is said and done, law inevitably reflects ideological beliefs. How could one think otherwise? In a deep way this case was about liberty, government power, and states’ rights—issues about which the justices have strong visceral feelings, even if those issues were not front and center in the briefs and arguments.
Others point to the consequences of decisions, and again how could one seriously decide cases of this magnitude without thinking about what would follow from those decisions? The court was asked to strike down legislation that would determine whether tens of millions of Americans could obtain affordable health insurance. Anyone who thinks the nine justices were blind to the scope of the results in this case doesn’t understand what courts do all day. To sniff at such considerations as mere politics as opposed to law is to miss altogether what it takes to make law work in the everyday world. And it’s why the justices have an incredibly difficult job.
Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law and the author of The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. He is currently writing a book on the Fourth Amendment.
Dahlia Lithwick writes about the courts and the law for Slate.