John Roberts Writes His Own Law

By

Jan Crawford has an amazing report showing what many of us suspected immediately when the Supreme Court announced its shocking and bizarre decision to uphold the Affordable Care Act: John Roberts switched his position on the law because he feared the crisis of legitimacy he would create by embracing such an activist position. He is perfectly eager to join in future bouts of right-wing judicial activism, but this particular one, and this particular time, frightened him away from the precipice.

I should explain why I call the decision shocking and bizarre. There were numerous arguments for the constitutionality of the law. The argument that it could be uphold under the power to tax struck me as convincing (Jack Balkin made the case a month before the decision) but not completely airtight. You could plausibly deny the mandate was a tax, whereas the arguments denying it as a function of the Commerce Clause were insanely tendentious. Liberal lawyers were unanimously supportive of the Commerce Cause justification and divided on the taxing arguments. Conservative lawyers were divided on the Commerce Clause and united on the taxing authority. The overlap of legal minds willing to accept the fantastical right-wing arguments against the law but also to accept the weakest liberal argument for it contained nobody at all, until Roberts himself stepped forward to claim this unoccupied territory.

Crawford’s report will enrage conservatives. (The conservative justices and/or clerks who spoke with her probably leaked the story precisely in the hope that it would.) They’re right to be enraged. The essence of law is to decide cases on the basis of what the law says, not on the basis of personal preference or some other consideration. Roberts seems to have corrupted his role as a judge, deciding upon the outcome that made him most comfortable and working backward to a justification for it. The epithet legal scholars use for this sort of thing is a “results-oriented decision.”

And this suggests why, as reassuring as the bottom-line result of Roberts's decision may be, the process by which he arrived at it was so unnerving. The legal arguments he did endorse were simply crazy. And, beneath the legal gobbledygook, the form of craziness was crude and obvious.

The case against the law was, basically, to devise a series of often niggling, semantic or outright false distinctions between Obamacare and other of the many ways in which Congress has regulated commerce before. Then, freed from precedent, it could turn the decision into a philosophical game, imagining that upholding this law would enable some future law which adopted a vaguely related rationale to some horrible dystopian end (mandatory broccoli!) You could use this kind of dorm room logic to declare any law unconstitutional. All you have to do is find some way in which it’s different from previous laws – and every law is different from other laws in some way – then imagine President Stalin and a complaint Congress twisting the justification to some unimaginable purpose, and presto, unconstitutional.

David Frum brilliantly compares the this-isn’t-really-in-the-Constitution-so-I’ll-wing-it logic of the conservative dissent to the famous liberal activism that liberal justices used to create a right to sexual freedom in Griswold v. Connecticut. That earlier case, rightly scored by conservatives for decades, declared that “emanations” from the Third, Fourth, Ninth and Tenth Amendments created a right to privacy that extended to sex. The four conservative justices insisted Obamacare couldn’t be constitutional because… well, just because:

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

They can’t say what limits the government can prescribe upon private conduct. But they don’t like this health care business. So they’ll just cite the Constitution in general as their source here, with all the legal precision of some guy in a tricorner hat at a Tea Party rally. (Scalia also hates dope smokers so anything he may have said about limiting their private conduct does not apply to health care.)

Roberts was willing to endorse the legal logic of this thinly veiled justification, but unwilling to accept the political consequences of it. If his decision was justice, it was justice of the roughest kind.