Did Roberts Outmaneuver The Liberal Justices?

In the world of politics, there are always two stories – what actually happened, and then what the media says happened.  We are seeing this now, in the media analysis of the Roberts Court’s ruling last Thursday regarding the individual mandate and Obamacare. Most of the major Sunday talk shows devoted much of their programs to a discussion of the ruling, and those discussions were largely dominated by two media memes.

The first is an emerging story, first broached by Paul Campos in this Salon article and also by economist Brad Delong, that Roberts was poised to strike down the mandate in its entirety, but backed down at the last minute in order to avoid the partisan repercussions that such a ruling would have sparked.  Campos writes, “It is impossible for a lawyer to read even the first few pages of the dissent without coming away with the impression that this is a majority opinion that at the last moment lost its fifth vote. Its structure and tone are those of a winning coalition, not that of the losing side in the most controversial Supreme Court case in many years.”    This reasoning would also explain the blistering tone of Justice Ginsburg’s dissent in which she eviscerates Roberts’ argument that the individual mandate does not constitute interstate commerce.  Note in particular Ginsburg’s analysis, in her dissent, of the “broccoli horrible” – it could come right from the Jon Steward Daily Show in terms of its biting tone:

“Underlying THE CHIEF JUSTICE’s view that the Commerce Clause must be confined to the regulation of active participants in a commercial market is a fear that the commerce power would otherwise know no limits. As an example of the type of regulation he fears, THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables. One could call this concern “the broccoli horrible.” Congress, THE CHIEF JUSTICE posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others.

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the “hypothetical and unreal possibilit[y]” of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of heroin. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

For the reasons explained above, the minimum coverage provision is valid Commerce Clause legislation.”

What’s worse than a “nanny” state for a conservative?  A “vegetable state”!  Steamed or raw – but not deep fried!  Such a mocking tone, the argument goes, must be driven by Ginsburg’s assumption that she was on the losing side (which, to be sure, she was when it came to the interstate commerce clause.)

A second media meme, however, suggests that Roberts’ is playing a very deep and forward-looking game, and that from this perspective Thursday’s ruling was a victory for conservatives. As Charles Lane wrote in this Washington Post editorial:  “What emerged was less a legal opinion than a plan for national cohesion, on terms remarkably favorable to conservatives.”   How can a decision upholding Obamacare be favorable to conservatives?  First, because by rebranding the penalty as a “tax”, Roberts has provided a rallying point to energize the Tea Party and he has made it more difficult for Obama to run on health care reform as his signature accomplishment.  As Lane puts it, “Conservatives reproach Roberts for activism, saying he “rewrote” Obamacare. He sure did. Formerly, it embodied progressive hopes for a more active federal government and a Democratic political majority. Now, it’s truncated and facing a political battle royale in November with a big “tax” sign around its neck.”

And while much of the analysis has focused on Roberts upholding the individual mandate, the Court also limited the planned expansion of Medicaid under Obamacare.  Remember, 26 states had sued the government, arguing that Obamacare unconstitutionally coerced them to participate in the Medicaid expansion by threatening to remove all Medicaid funding for states that did not participate.  By a 7-2 margin that included liberals Stephen Breyer and Elena Kagan, the Court sides with those states by not striking the provision entirely, but by letting the states opt out without paying a penalty.  Already at least some state governors are hinting that they will do just that. As Lane summarizes, “In short, the liberals saved the plan for the blue states by letting the red ones go.”

Finally, goes this line of reasoning, in the long run, Roberts has carved out ideological maneuvering room and earned political capital which the Court can use to limit the scope of government intervention in policy areas such as Section 5 of the Voting Rights act, or race-based affirmative action.

In short, the argument is that Roberts was quite willing to beat a tactical retreat on this one issue in order to better position the conservative wing of the Court to win the ideological doctrinal battle in the long run.  And that explains the unusually harsh language exhibited by Ginsburg, who understood that Roberts had boxed the liberals in, and was none too happy about it.

I have two reactions to this.  First, to paint Roberts’ ruling as a victory for conservatives is to mistake the forest for the trees.   Let’s not lose sight here of the most important outcome from Thursday’s ruling: the individual mandate, and thus Obamacare, still stands, largely intact with the Medicaid exception.   Had Roberts switched his vote to side with the four other Republican-nominated justices, that would not be the case. While it is true that the liberal justices were none too happy with Roberts’ reasoning, the four other Republican-nominated justices were not exactly pleased either, as Kennedy’s dissent to Roberts’ labeling of the penalty as a tax shows. (I excerpted portions of that dissent in my previous post.)

Second, while it is true that Thursday’s ruling may give Roberts, who is only  57 years old, more room across the next two decades to reshape the direction of the court’s ideological direction, no one can be sure how that will play out.  It seems to me that if ideology alone drove Roberts’ decisions and that he was fixated on leaving the Court’s conservative mark, repealing health care would be a very good place to start.  Obamacare is, after all – as the Vice President infamously described it – a big effing deal.  It’s hard to anticipate any other ruling coming down the road that has the potential to affect so many people as did the Court’s decision regarding health care.   Given the stakes, I persist in thinking that a justice interested only in policy outcomes would have opted for a bird in the hand – repealing Obamacare – rather than playing a long game focusing on the elusive two birds in the bush.

For both these reasons, I stand by my earlier call:  Roberts’ decision is best understood institutionally, in terms of its implications for the Supreme Court’s status and independence, than attitudinally based on Robert’s ideological and policy preferences.  Put another way, if Roberts was not the Chief Justice who bears primary responsibility for protecting the Court’s institutional interests, he would have voted against the mandate.  Or so I believe.

This does not tell us when Roberts arrived at his decision.  It may very well be that it was late in the game, as he weighed the relative consequences of voting ideologically or institutionally.  Only Roberts (and perhaps his law clerks) knows for sure.  Perhaps someday some enterprising political scientist will dig through Roberts’ papers to discover the answer.  By then, of course, we will have more evidence on which to judge whether Roberts, as some are now arguing,  was playing a deep and forward-looking game – and with what degree of success.

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