Two fears have hovered over American liberals since the legal case against the Affordable Care Act began wending its way through the system. The first was that conservatives would succeed in revising what Jeffrey Rosen called (in a prescient 2005 New York Times Magazine story) “The Constitution in Exile”—that the Court would interpret the Constitution to forbid deviations from right-wing economic policy. A second, darker fear was that five Republican-appointed justices would concoct a ruling in order to win a huge battle that their party had lost in Congress—that partisan Bush v. Gore–style rulings would now become regular features of the political scene.
The two fears were, of course, deeply intertwined. What happened, and what hardly anybody expected, was that they diverged. The second fear was decisively refuted: Thankfully, the Court allowed the one reform to our dysfunctional health-care system after decades of paralysis to stand. The first fear is very much alive.
A century ago, the Supreme Court was controlled by conservatives who wantonly invalidated Progressive Era regulation. After one especially egregious ruling, Oliver Wendell Holmes wrote in dissent that “a constitution is not intended to embody a particular economic theory.” By the middle of the New Deal, the Court eventually came to agree with Holmes and left the fight over government intrusion into the economy to the elected branches. The Constitution in Exile is a judicial movement of conservatives and libertarians dedicated to erasing what it sees as a great historical error.
The legal case against the Affordable Care Act was the pièce de résistance of the movement, leaping from one selective reading of precedent to another before landing on the unhinged fear that allowing the law to proceed would one day allow Congress to force-feed broccoli to an unwilling public. The case promised to carry out the double task of invalidating a hated social reform and ushering in a new era (or, alternatively, a very old one) in which the Court hacked down liberal laws regularly.
Roberts endorsed all the wild legal analytics of his conservative allies save one, in which he improbably decided that the fine upon those choosing to forgo health insurance could be justified as a tax. It was a clever and careful way to sustain the promise of future Constitution in Exile rulings without delivering this particular one.
Why would Roberts hesitate at striking down Obamacare? He was being asked to intervene in a high-stakes political fight, in the heat of a presidential campaign, and endorse an argument viewed with universal and absolute disdain by the entire liberal legal Establishment, along with not a few queasy conservatives. Striking down the law at this moment would have brought the Court to a tipping point at which Roberts’s political opponents, at least, would afford him no legitimacy at all as the “umpire” he promised to be in his confirmation hearings. He stared into that abyss and recoiled.
His exact thinking will remain a secret for years and possibly forever. But the ruling itself offers tantalizing forensic clues. Antonin Scalia’s dissent uncharacteristically aims its barbs at the government, not the majority. Nine times it refers to the majority as “the dissent.” This is an odd mistake, best understood as the residue of a decision that commanded a majority before its chief justice unexpectedly bolted at the last moment.
Such a move would be in keeping with Roberts’s style. He is both a right-wing ideologue and a careful politician, building a new jurisprudence brick by brick. If you combine the growing politicization of the Court with the increasing use of the Senate filibuster, it is even easy to see the outlines of a future constitutional crisis. If we come to see Roberts and his colleagues as a kind of all-powerful super-legislature settling all final partisan disputes, how likely is the teetering Senate tradition of letting presidents pick ideologically congenial justices to continue? Imagine Republican senators, facing the constant threat of tea-party primary challenges, letting a second-term Obama replace a conservative justice. Hard, isn’t it?
For now, Roberts’s ruling keeps in place an element of ideological mystery, allowing us to see justices as not mere automatons in the partisan war over the scope of government. The war goes on, but Roberts has averted an immediate crisis of legitimacy.
* This article has been edited and expanded since its original publication.
