A first reaction to the Supreme Court’s Affordable Care Act decision (National Federation of Independent Business v. Sebelius, decided June 28, 2012, and available at the Supreme Court's website):
Few people thought Chief Justice Roberts would supply the fifth vote to keep President Obama’s health care law on the books. What should we make of the fact that he did?
One possibility is, of course, that he simply voted his convictions about the important issues of constitutional law the case presented. He is committed, then, to finding limits on Congress’ power under the constitution's commerce clause and spending clause (and on the spending clause issue he does cut back on what the statute can do), but still he accepts that Congress’ authority under the tax power is very broad. He also honors in full the rule of statutory interpretation that says statutes should be interpreted, if fairly possible, so as to be constitutional rather than unconstitutional -- which in this case meant to discern that the law’s “penalty” for those who don’t purchase insurance was not a regulation, which would have been beyond Congress’ power under the commerce clause, but a tax, which was within Congress’ power to tax.
I have no ground for doubting that these are in fact Chief Justice Roberts’ beliefs. But suppose for a moment that they weren’t. Suppose that what actually happened was not that he voted his beliefs but that he came to the conclusion that for the Supreme Court to overturn the Affordable Care Act would deal a damaging blow to the Court itself by calling its reputation for impartial, nonpolitical judgment even more into question than is already the case. So, while carefully laying out his views on the Commerce and Spending Clauses, he found a way to extricate the Court from the logic of those conservative principles – through the convenient medium of a flexible use of statutory interpretation to turn the law into something it might not have been (and something which could be held constitutional after all).
Did he do this? I don’t know, and I don’t know that the interesting speculation about the possibility that Roberts changed his mind late in the game helps us to decide why he did so. If he changed course late, he could have done so either because of legal argument or political calculation.
But let’s assume that it was the latter. Was that bad? That is, was Roberts wrong to consider the institutional position of the Court when he decided how to vote? I would say not. I think that there are issues of fundamental human rights on which judges must say, “Fiat justitia et ruat caelum.” (I’ve been waiting since my high school Latin classes for a chance to use those words, which roughly mean “Let justice be done and the heavens fall” – although even judges today probably would put the point in English!) But the job of the Supreme Court is not only to do justice in individual cases, but also to build the law of the land over time, and actually for both of those tasks the Court must retain the trust of the people at least to a substantial extent. The Court has no army, as has been pointed out many, many times. Its ability to enforce its judgments depends on the cooperation of the other branches of government and on the people. So if Roberts felt that he should lay out constitutional principles but find a way not to apply them so as to overturn the central legislation of the Obama presidency, he was acting in a tradition that goes back at least to Chief Justice Marshall in Marbury v. Madison in 1803 – a decision that established the power of the courts to hold federal statutes unconstitutional and by doing so actually avoided a much graver confrontation with the Jefferson Administration.
But isn’t this just a form of stealth jurisprudence, a device to further Roberts’ long-term goal of shifting the law to the right while escaping sharp public scrutiny for what is subtly underway? Maybe. That’s a good reason to criticize Roberts’ views, if they deserve criticism (and I think many of them do). But I don’t think that it’s wrong in principle for judges to seek to change the interpretation of the constitution – they may be right or wrong in their interpretations, but the fact that they’re changing past interpretations isn’t what makes them either right or wrong. It’s just not possible to say that our constitutional law is or should be fixed and changeless (even if some of the current conservatives assert its supposed unchanging, original meaning as their basis for overturning what they see as the mistakes of recent decades). The law will change.
What stops legal change from being political change pure and simple isn’t easy to define (and some people may believe there really is no distinction). But I think part of what makes law something other than politics is that it proceeds, usually (there are important and valuable exceptions), in a deliberate and incremental way. If Roberts’ views continue to command support, there will for sure be more laws overturned in the future – but it is important that we come to that point along a path that gives weight to contrary convictions, that shifts slowly rather than avulsively from past decisions, and that gives us all more time to take stock. All of that will give us more reason to believe that we are in fact observing (to use a distinction Alexander Hamilton affirmed in The Federalist Papers) the application of judges’ “judgment” rather than merely their “will.”
So: if Roberts was acting on the basis of institutional calculation as well as legal principle, was he engaged in manipulation or statesmanship? I'd pick the latter. But in a way the question isn't a good one, because in this context there is no absolute line between these two. Here, as perhaps in many other situations as well, some measure of calculation is an integral part of wisdom.