Was John Roberts Being Political?

The law, lawyers, and the court.
July 2 2012 6:40 PM

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.

Justice Elana Kagan and Chief Justice John Roberts
Justice Elena Kagan and Chief Justice John Roberts

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.

If you are following along this far, then what did Roberts do? The only person who will ever fully know or understand is the chief justice himself, so this is all guessing. But suppose after considering the matter at length—isn’t that what he’s supposed to do on a question of this moment?—the chief justice decided it was best for court and country to vote to uphold the health-reform law. And suppose he did so because at bottom he believed an issue that could go either way legally should be fought out in the political arena; that there was at least a plausible constitutional basis for so concluding; and that the risk to the court’s legitimacy was too high to vote to strike the mandate.

Add to this the problem of severability. It would be one thing to strike the mandate and let Congress figure the mess out, another to take down the ACA entirely. The dissent begins by acknowledging Congress had the power to address the health care problem—one presumes with a single-payer system that only would enhance national power—but as everyone knows, if the ACA went down, politics was likely to put the kibosh on health care reform for another long while. If Crawford is right, Roberts was willing to consider striking the mandate, but was uncomfortable taking out the law in its entirety. And with good reason. Read the joint dissent’s cost-benefit winners-and-losers analysis of the ACA in its severability discussion and say that doesn’t come powerfully close to crossing the law-politics divide wherever it sits.

Of course, law and politics do not always mix gracefully, as is apparent when you read the chief justice’s commerce and tax positions next to one another. Congress cannot regulate inactivity but it can tax it? Really? Congress lacks the power to make us buy broccoli but it can tax us if we don’t. Huh? But, again, it is not pre-existing legal precedent that compelled the joint dissent’s acceptance of the activity/inactivity distinction in the first place. They as much as admit it.

The point is only that on a nation’s high court, in which legal precedents rarely decide cases, what one calls law and what goes in the vernacular by politics often come together. That’s why all the sturm and drang about what Roberts did—or did not do—is patently ridiculous. He did what justices, and especially chief justices, do. The current effort to delegitimize him for weighing all the evidence and making a considered opinion is the best single argument around for maintaining life tenure for Article III judges.

But the discussion can hardly stop there, for what about the role played by Crawford’s sources? And what about the suggestion that the court’s right has turned its back on Roberts entirely, refusing even to engage with his opinion? (This latter point was obvious to anyone reading the joint dissent.)

From what Crawford tells us about her sources, we can’t know if it was an intentional leak or not. But either her sources—or those sources’ sources—had to come ultimately from within the court itself. Given the importance of this case it is difficult to believe it was just an accident. Yet, a high-level leak on a decision of this magnitude this soon is unprecedented. And, frankly it is rather nauseating to anyone who worries about preserving the integrity of the court.

On the high court, there’s politics and then there’s politicization. There’s a difference between law and politics coming together on the court, and the possibility that someone is working from within the institution itself to further political ends. Or personal pique. Or whatever the heck was behind this apparent leak. The court has always been in politics and has always been politicized, but has remained pretty leak proof precisely because the justices understand the devastating effect this kind of politics will have on the institution. That’s mistake No. 1 by whoever spoke to Crawford.

Mistake No. 2 is if anyone thinks there is profit in the conservatives turning their back on the court’s fifth conservative vote. There can be no serious question that Roberts is a conservative. Crawford’s story about the conservative’s pique is reminiscent of how Justice Antonin Scalia famously drove Justice Sandra Day O’Connor away from his camp with his repeated slights and insults. Roberts is a big boy and one suspects he will vote in the future in a manner consistent with his long-standing conservative priors. That’s why all the sudden lionizing of Roberts on the left comes with a certain ill grace and likely is misplaced. That said, Justice Elena Kagan is as good at the long game as he is, apparently, and there is assuredly room on this court for compromise. That kind of politics has always played well on the court, and how could it be otherwise when it takes five votes to tango?

It’s no secret that Americans’ trust in government is at an historic low. People see the political parties and their partisans as overly polarized, overly mistrustful of one another, and ever willing to put “politics” ahead of actually governing. If what we saw this week was at least one justice (and perhaps three, given that Justice Stephen Breyer, along with Kagan, joined conservatives on the Medicaid issue) struggling for some middle ground that actually moves us toward something more than rampant partisanship, it is hard to argue with that. Call it law, call it politics: The country needs more of it.

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.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.