Ten Miles Square


June 29, 2012 8:00 AM John Roberts and the Last Temptation

By Mark Kleiman

The consensus among those entitled to express an expert opinion – a class that does not include me – appears to be that Chief Justice Roberts not only wanted and intended to strike down the individual mandate but actually voted to do so before changing his mind.

I have seen no one claim that this resulted from Justice Roberts’s sudden appreciation of the merits of the “if it looks like a duck” argument that the mandate should be construed as a tax. His motive is universally assumed to have been institutional: to prevent the hardening of the perception that the Supreme Court is simply the least democratic and transparent of three political branches of government.

If that is the case, it seems to me that he outsmarted himself. If the Court is to be respected as a court, then it must appear that its members are practicing jurisprudence and not mere politics: that they decide cases according to the law, rather than simply taking positions on issues. But does anyone believe that about what Justice Roberts did today? No one that I know of.

So in trying to avoid the perception that the Republican majority on the court acts purely politically, the Chief Justice made it obvious that he was acting purely politically. Even if you think that upholding the mandate was the right deed, doing it so transparently for the wrong reason vitiated its intended benefit.

I think the technical term is “own goal.” And no, it doesn’t make me happy. Judicial review is one of the great American constitutional innovations, and the last thing the country needs right now is to have one more major institution fall into public contempt.

[Cross-posted at The Reality-based Community]

Mark Kleiman is a professor of public policy at the University of California Los Angeles.


  • Always I am Caesar on July 02, 2012 10:00 AM:

    To late . When they stopped the vote counting they became an untouchable political entity .

  • David in NY on July 02, 2012 12:45 PM:

    How about this (which I consider plausible): He always thought it was a tax, as evidenced by his statements in oral argument. He voted to overrule the mandate (but not the whole act), on the assumption that Kennedy or somebody could explain why it actually wasn't a tax. They couldn't do it, as evidenced by their opinion which doesn't even try to do it. Moreover, they insisted on invalidating the whole thing. So he changed his vote, but not his position.

  • cwolf on July 02, 2012 5:10 PM:

    @ David in NY on July 02, 2012 12:45 PM:

    What you said makes a lot more sense than what most pundits are saying.
    And it's the best counter to any of the Roberts vote switch theories I've seen.

  • N.Wells on July 02, 2012 7:40 PM:

    What David said sounds plausible, but ElectoralVote.com ( http://www.electoral-vote.com/evp2012/Pres/Maps/Jun29.html#item-1 ) notes that Roberts initially decided that the penalty was not a tax (in order to hear the case in the first place) and then decided that it is a tax.

    The essay concluded that "Most likely Roberts felt that universal health care was going to happen one day and he didn't want to go down in the history books as another Roger Taney, the Chief Justice who wrote the majority opinion in the Dred Scott case. Taney ruled that slaves were private property and if one ran away, he had to be returned to his lawful owner. History does not look kindly on Chief Justice Taney. Roberts did not want to damage the Court's prestige by being on the wrong side of history again. So he invented this rather contorted 'It's not a tax but it is a tax' story to get to where he wanted to go."

  • pbasch on July 03, 2012 12:21 AM:

    Maybe, maybe... I speculate (based on absolutely nothing except experience with hierarchies and institutions) that Roberts did this to put Kennedy in his place. Kennedy had too much power as the swing vote, and this defanged him. Now the right wing of the Court can't take Roberts for granted, and this gives him leverage in future negotiations.

  • Michael Wensink on July 07, 2012 5:02 PM:

    This is the worst type of pretzel logic. Under your theory Roberts could either act politically or act politically. ObamaCare is constitutional in fact it fills a enormous hole in the government's obligation to the governed. The very purpose of the constitution is to "promote the general welfare" no matter how you parse it health care falls under general welfare. The mandate is the conservative method of addressing the issue of how to pay for it. The liberal method would be tax the middle and rich to pay for it. Roberts is now the swing vote. Which it is as it should be given the composition of the Court. Roberts is well within his authority fixing a minor flaw in a statute.

  • Dr Everett V. Scott on July 12, 2012 4:42 PM:

    They got to him. It's as simple as that.

    We may never know if it was a skeleton in Roberts' closet, or whether he has a consuming desire to be liked, or any of a number of other reasons. But it doesn't matter.

    They got to Roberts, who flushed the Constitution based on a completely bogus rationale. Now nobody on either side will ever trust the double-dealer again. And for a good reason: he switched his vote at the last second.

  • Philat on July 14, 2012 8:24 AM:

    That "they got to him" is a simple answer is true. But who is "they?"

    A better scenario is that while Roberts was against using the commerce clause as a reason for the constitutionality of the mandate, he was opposed to overturning the entire law on this one part as it became clear that the troika of Scalia, Thomas, and Alito, joined by Kennedy, wanted to do. He also decided whether earlier or later that the Supreme Court's standing in the nation had dropped significantly because of what seemed to most observers as truly political decisions in Bush vs Gore and Citizens United, when the Court blithely ignored decades of precedence and their own more recent rulings. Hence he returned to what the role of the Supreme Court and that of the chief justice. The Court's only function is to determine whether or not the act meets constitutional standards to a law passed by the people's representatives, regardless of personal opinions of the justices as to the wisdom of the law or whether it hews to their particular political outlook.