Political Animal


June 28, 2012 1:21 PM Roberts’ Brand of Conservatism

By Ed Kilgore

At Ten Miles Square, John Hopkins’ Steven Teles, who’s written an important book on the conservative legal movement, and who predicted a result much like the one the Supreme Court produced, offers his expert take on the significance of Chief Justice John Robert’s position in the ACA decision. His main argument relies on a baseball metaphor:

The best way to understand the difference between Roberts and the dissenters is to think of two pitchers who are throwing to a batter who is crowding the plate. The first pitcher throws at the batter’s head, while the second brushes him back. At least in this decision, Roberts decided to be that second kind of pitcher. Roberts wanted to send a signal to the other branches that there are limits on government, and the ACA was really crowding the plate. But he didn’t want to hit the pitcher and invalidate the whole law. So declaring that the mandate violates the Congress’ power under the commerce clause but upholding it as a tax does what Roberts wanted to do: get Congress to pay closer attention to constitutional norms while not precipitating a bench clearing brawl.

I will obviously defer to Teles’ superior knowledge of where Roberts seems to fall in the constellation of conservative jurists, and his judgement that the Chief isn’t as radical an activist as many liberals feared he would be. But I still think something else may be going on, as some of the conservatives adjusting to the decision seem to have concluded: Roberts exercised “judicial restraint;” at the same time, however, he managed to deliver not only his “brush-back pitch” but a nice, easy talking point about ACA relying on a “tax.”

It’s also important to recognize the long-term stakes involved in the kind of conservative assault on the Commerce Clause that the four dissenters supported. It’s entirely possible conservatives will be able to dispose of ACA via the executive and legislative branches, particularly if they do well in November. But undermining the very popular New Deal and Great Society programs will require a truly audacious coup. If that is part of Roberts’ long-term agenda for “his” Court, he may well want to move cautiously—but move steadily over time. We’ll just have to wait and see.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • one more anonymous gal on June 28, 2012 1:52 PM:

    Twenty six states sued over the mandate and don't feel the love. The progressive in me is gleeful as stock-still Republican Governor McDonnell shows yet more forehead wrinkles and signs of stress talking to Andrea Mitchell about his supreme disappointment. (My pun intended)
    And wasn't Romney quite without a sense of history or historical importance, or esp-- saying last night--ever the bully--that the white house certainly isn't sleeping well tonight, ha ha, he laughed---really infantile sounding, callow and puerile. He is exhaustingly superficial.
    Today's report on Obamacare is beyond measure and remains a big win for us.

  • bertheclock on June 28, 2012 1:55 PM:

    "hit the pitcher"???

    Hit the batter.

  • Joe Buck on June 28, 2012 2:08 PM:

    Romney himself used the phrase "tax penalty" to describe his own bill. Taxes aren't evil, but too many Democrats have accepted Republican framing.

  • dalloway on June 28, 2012 2:29 PM:

    Actually, Roberts went out of his way to say the penalty was not a tax, but was constitutional under Congress's power to tax -- walking a fine line that Republicans will, no doubt, refuse to see.

  • c u n d gulag on June 28, 2012 2:37 PM:

    This decision may be trickier than people think.

    There are taxes, and then there are taxes.
    And, as I’ve just recently heard, the SC has some limits on what it can do with laws where the tax has yet to be collected.

    And, by NOT allowing “The Commerce Clause,” Roberts is NO stooge, and may very well NOT be a good guy who saw the light.

    There are MANY social safety net programs based ON “The Commerce Clause” – like SS, Medicare, Medicaid, S-CHIP, etc.

    See any problems there in future decisions regarding SS and the other programs?

    I’m not any Constitutional expert by any means.
    But Roberts is.
    And, while we’re all cheering, I can’t help wondering if he hasn’t opened-up a huge, new, can of worms.

    I can’t help it.
    I used to be an optimist – but the last 30+ years have whipped that out of it.

  • jsjiowa on June 28, 2012 2:48 PM:

    c u n d, the legal analysis I've seen so far says not be worried by Roberts' conclusion on the Commerce Clause, because it won't apply to many cases in the future. However, I'm not entirely satisfied with that distinction. I'm a bit more suspicious of Roberts' intentions: part of me wants to believe that he was trying to throw conservatives a bone by accepting their broccoli argument and finding some limit to the Commerce Clause, but the bigger part of me thinks the opinion was drafted with an eye to the future. (Chait has similar reservations: http://nymag.com/daily/intel/2012/06/john-roberts-saves-us-all.html)

    I guess we're going to have to watch how things develop.

  • TCinLA on June 28, 2012 3:05 PM:

    So long as the five Republican judges are on the court (Kennedy likely the first to go for age, which could happen between now and 2016, a point to remember in your vote this November), and have indicated that they are willing to overthrow the power of the Commerce Clause, this roadblocks expansion of existing social welfare programs based on that power, and effectively puts a killer in the way of legislation to deal with climate change, which will massively change commerce and obviously rely on that clause.

    No matter what one thinks of Obama, the Supreme Court has demonstrated clearly today why it is important to keep Republicans out of the White House. That one reason trumps anything else.

  • stratplayer on June 28, 2012 4:16 PM:

    I'm not entirely convinced that Roberts is laying the groundwork for a future total evisceration of the Commerce Clause power. He surely would like to see it scaled back to some extent, but I suspect that he has been taken aback by the angry extremism and apocalyptic rhetoric of the ACA's opponents, especially that of Justice Scalia. Perhaps he has found his inner Edmund Burke. It seems to me that if he really wanted to revive the dark age of Lochner he would have gone for the kill in this case.

  • schtick on June 28, 2012 5:17 PM:

    I'm with you, stratplayer. I'm thinking Roberts was sending a message to Scalia and friends that they have been too obvious in their corporate tealiban rhetoric, nevermind the dinners etc., they are having with the same people that have decisions pending before the SCOTUS, and over-stepping the line in attacking the President.
    People are becoming disgusted with the SCOTUS as much, if not more so, than Congress. They don't want to lose their cushy jobs with full benefits for life and full pensions for life because the people demand changes.