Yet, there are also moments, as in the health care case, where Roberts hasn’t gone as far as some of the fire-breathers on his Court have wanted to go. In 2009, he guided the justices to a narrow result that upheld provisions of the Voting Rights Act that have long been anathema to conservatives. In that same term, his Court resisted eliminating the “disparate impact” test in racial-discrimination cases, in a highly publicized case of white Connecticut firefighters who were passed over for promotion. (But, again, given the proclivities of his Court to revisit hot-button issues, Roberts could have another opportunity to pass judgment on both these areas in the next term.)
“Chief Justice Roberts is not a true believer,” says Douglas Kendall of the left-leaning Constitutional Accountability Center. “He’s not an adamant force in reducing the powers of the federal government.”
Roberts’s self-described criteria for action—the line between judicial “restraint” and “abdication”; the tension between his Midwestern pragmatism and his conservative radicalism—is what makes him among the most inscrutable of justices and explains in part why the health care ruling confounded so many. After seven years, Roberts’s admirers and his detractors may think they know him, only to be reminded in capital letters that they don’t.
‘A STATEMENT OF REVOLUTION’
The health care decision, in fact, laid bare both sides of the chief justice. His hostility to the health care law shines through to the extent that his vote to uphold it remains jarring. In agreeing that the requirement that all Americans purchase health insurance is valid under Congress’s taxing power, Roberts couldn’t resist poking at it anyway. “Because the Constitution permits such a tax,” he wrote, “it is not our role to forbid it, or to pass upon its wisdom or fairness.”
The language was not just a sop to conservatives, whom Roberts had to know would feel betrayed. The rest of his opinion more than made up for the validation of Obama’s health care program. (And Roberts perhaps trusted that voters may end up punishing Democrats at the ballot box as a result of his defining the individual mandate as a “tax.”) Despite upholding the law, Roberts found the mandate invalid under the Constitution’s commerce clause—agreeing with the other four conservatives on the Court, as well as Barnett and like-minded opponents.
It was, Barnett says, “a five-justice commitment to the idea that the commerce clause has limits, that the Court will enforce those limits, and that this particular mandate was beyond those limits.”
Congress has used the clause to justify all manner of economic regulation—to the point where the prevailing view since the 1930s was that as long as a federal law or rule had some tangential relationship to the marketplace, it was legal. The Rehnquist Court poked some holes in the doctrine, but the health care opinion marks the first time that the Court has placed an outer marker in matters that clearly relate to the economy.
“Five years ago, if you had predicted that a federal health care law would be held in violation of the commerce clause, I think the typical reaction among mainstream legal scholars would be derisive laughter,” says Clint Bolick, a conservative litigator with the Hoover Institution.
Justice Ruth Bader Ginsburg, who led the liberals in dissent (even as she joined Roberts’s opinion on tax grounds), wrote a blistering critique of the chief’s views. Roberts’s “rigid reading of the commerce clause,” she said, “makes scant sense and is stunningly retrogressive.”
To some observers, the sturm und drang seemed unwarranted. It’s difficult to envision a situation similar to the one presented by the health care law, under which the government compels the purchase of a private product—so it would seem that Roberts’s outer boundary isn’t much of one at all. But, clearly, Ginsburg believed that something was afoot. The Court’s ranking liberal understood that Roberts, along with Kennedy, Alito, Antonin Scalia, and Clarence Thomas, were drawing ever closer to conservatives’ cherished goal of employing a revised view of the commerce clause to strike down a host of federal regulations, and perhaps even providing a template for some future Court to abolish Medicare or Social Security.
“It was a small case from a doctrinal standpoint, a huge case from a worldview standpoint,” Barnett says. “And worldviews are more important to explain the Supreme Court going forward.”
A future Court “could seize upon” the language, Kendall says. He calls the dissent that Scalia, Thomas, Kennedy, and Alito filed in the case—which Roberts implicitly endorsed—“as pure a statement of revolution as you can find.”
In its next term, the Supreme Court will hear challenges to both the Voting Rights Act and affirmative-action programs.