Preserving Obamacare with a prescription of common sense

It was a busy week for the Supreme Court, and a very good one for liberals.

But let’s not focus on human rights, including the profound and welcome decision to recognize a right to same-sex marriage. Instead let’s discuss statutory interpretation!

In the Affordable Care Act (Obamacare) case, Kingv. Burwell, the Court had to decide whether a provision of the statute, which allowed tax credits – essential for the overall plan’s viability – to be paid to a taxpayer who had purchased insurance through “an Exchange established by the State,” actually authorized tax credits not only for taxpayers in the states that did establish these Exchanges but also for taxpayers in the many states – a large majority – that did not. In those states, as the statute provided, the federal government had filled the void left by state inaction and established an Exchange itself.

So the precise statutory question was “does ‘Exchange established by the State’ mean “Exchange established either by the State or the federal government’”? It might seem obvious that the answer is "no" – the federal government is not a state. For Justice Scalia, the answer was obvious, and it was indeed "no." Scalia says that the Court's answer -- "yes" -- "is of course quite absurd, and the Court's 21 pages of explanation make it no less so." (Dissenting opinion at 1.) That's pretty sharp -- though not the sharpest language Scalia has ever used. 

Despite Scalia, six justices said "yes," in an opinion by Chief Justice Roberts. In fact the question wasn’t quite as obvious, even as a technical matter, as Justice Scalia believed. For example, as Roberts says, the statute “defines the term ‘Exchange’ to mean ‘an American Health Benefit Exchange established under section 18031.” Section 18031 is the section telling states to set up these exchanges, but the states weren’t obliged to do so, and another section, 18041, tells the Secretary of Health and Human Services to “establish and operate such Exchange” if the state doesn’t. Then, since “Exchange” is defined as an Exchange established under section 18031, and section 18041 tells the Secretary to establish “such Exchange,” actually the Secretary is being told to establish “an exchange … under section 18031,” which, again, is the section authorizing states to set up exchanges. So it’s possible to parse the language to say that the federal government has been instructed to set up state exchanges. (Majority opinion at 11-12.)

It turns out there are a number of anomalous sections like this. Perhaps the most striking is the one that says that all exchanges are to report to the IRS the information necessary for the calculation of each person’s tax credit – a provision hard to understand if in fact people who purchased insurance on federal exchanges couldn’t get any tax credits at all. (Majority opinion at 13-14.)

But the real point, I believe, is not these technicalities, though they help Chief Justice Roberts to establish that the statute has enough ambiguity to be open for interpretation. The real heart of the Court’s decision is evident in this penultimate paragraph:

            Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. [The relevant section] can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt. (Majority opinion at 21.)

Roberts appears to believe that where the constitution does not set the courts at odds with the other branches of government, then the courts and those other branches are partners in governance. This is an old idea, dating back to the “legal process” school of the mid-twentieth century. It is by no means a charter for unchecked, freewheeling judicial rewriting of the statutes enacted by Congress; there will surely be many, many cases where the clarity of a statute’s words overwhelms arguments for reinterpretation that are less cogent than those in the Obamacare case.  

But this case does indeed create a precedent for the proposition that language by itself, however seemingly clear, should not be understood in a way that “destroys” what Congress meant to do. To this extent Scalia is clearly right: this case “will be cited by litigants endlessly,” though I don’t share his belief that the result will be “the confusion of honest jurisprudence.” (Dissenting opinion at 21.)

In fact the case is already not unique – this is at least the third decision Roberts has written or joined in the past two years in which the Supreme Court has departed from what arguably was the clear import of statutory words if read by themselves. The earliest  was Bond v. United States, decided in June 2014; there the Court decided, in an opinion written by Roberts, that a woman’s effort to cause a romantic rival to “develop an uncomfortable rash” by putting “two toxic chemicals” on the rival’s doorknob did not amount to the use of a “chemical weapon.”  The next was Yates v. United States, decided in February 2015, in which the Court held (though without a majority opinion) that a statute aimed at financial fraud, one of whose provisions punished the destruction of a “tangible object” with the goal of interfering with a federal investigation, did not cover the destruction of illegally-caught oversize fish.  The Supreme Court appears to be experiencing an epidemic of common sense!

These common-sense decisions reject an alternative approach that almost taunts Congress for its imprecisions. Instead, they tell us that we can, at least broadly, understand what Congress seeks – despite the skepticism with which some have come to greet this proposition. Just as clearly, they say that when we understand it we should support it (of course within the bounds of the constitution) even if the words Congress used don’t readily lend themselves to such a supportive reading. 

Thank goodness.

When a fish is not a "tangible object" and why this matters

A brief note on the intriguing case of Yates v. United States, decided by the U.S. Supreme Court on February 25, 2015: This case asked whether a fish is a "tangible object," and answered: no. (By a 5 - 4 majority, with the deciding vote cast by Justice Alito, who agreed with the result but did not concur in the reasoning of the plurality opinion by Justice Ginsburg.)

How could a fish not be a tangible object? Obviously the dictionary would confirm that a fish is a tangible object -- it can, in fact, be touched. But "tangible object" in this statute, the Supreme Court concluded, did not mean all objects encompassed in the dictionary meaning of the words. Instead, to make a long story short, the Court concluded that in this particular statute -- part of the Sarbanes-Oxley law, enacted after the Enron bankruptcy and aimed, at least most directly, at preventing future massive financial frauds -- and as part of the statutory phrase "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object," the words "tangible object" referred to objects "used to record or preserve information." (Plurality opinion at 20.) What Mr. Yates had done was to throw undersize fish overboard, to avoid federal fish & wildlife penalties.

That's all interesting. I'm not sure that Justice Ginsburg has the better of the argument in terms of the various tools of statutory interpretation she and Justice Kagan, who wrote the dissent, employ. (This case is a wonderful one for teachers of statutory interpretation, like me; in three quite short opinions it runs through many of the rules that currently play an important part in how statutes are read.) But the case certainly stands for one proposition: dictionary meaning, inconsistent with context, doesn't always control. And that might be a good sign for the Affordable Care Act, which poses a similar problem: does the statute, which permits tax credits only to people who buy their insurance from a health care exchange created by a state, actually, in context, also permit tax credits to people who buy their insurance from a health care exchange created by the federal government in a state that chose not to create its own? The fate of the Affordable Care Act rests, to a very large extent, on this precise question of statutory interpretation. 

Affordable Care Act Part IV: When, if ever, does offering a state money amount to coercion?

After dealing with the commerce clause and the tax power, the Supreme Court in the Affordable Care Act case (available here) turned to the spending clause. (There can't be many cases that have addressed so many of the central federal powers under the Constitution.)

The text of the Constitution tells us that Congress can tax and spend for the “general welfare,” Art. I, § 8, cl. 1. Does that mean Congress can tax and spend on matters that it could not otherwise reach under the rest of its constitutional powers? The answer, the Supreme Court decided in United States v. Butler, 297 U.S. 1, 66 (1936), is yes. So Congress can raise money, and spend it, even on matters that otherwise would be the concern of the states rather than the national government. Moreover, as a general matter Congress can choose what it will spend on; that is, it can put conditions on what it spends, and if it proposes to provide money to states, it can require them to abide by such conditions.

But a year after Butler the Supreme Court suggested a limit on this authority, when it said, in Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937), that “[n]othing in the case suggests the exertion of a power akin to undue influence, if we assume that such a concept can ever be applied with fitness to the relations between state and nation.” That language is quite a bit short of a firm statement of a constitutional rule, and evidently no case until the health care decision ever found such coercion. Nevertheless, seven justices do find it here. That includes two of the court's liberals, Justices Breyer and Kagan, and their votes may have caused liberal observers a measure of the same disappointment conservatives have vitriolically expressed about Chief Justice Roberts.

What was the coercive aspect of the law? The statute provided for a dramatic expansion of Medicaid, which would now cover everyone under the age of 65 with an income up to 133 % of the federal poverty line. (Currently, Chief Justice Roberts writes, Medicaid covers “only certain discrete categories of needy individuals – pregnant women, children, needy families, the blind, the elderly, and the disabled…. There is no mandatory coverage for most childless adults, and the States typically do not offer any such coverage.” Moreover, states’ definitions of which families are “needy” typically draw the eligibility line well below the federal poverty level. Roberts at 45.) Medicaid is a program largely funded by the federal government, but operated by the states, and states can decline to have a Medicaid program within their borders. Arizona didn’t join the program till 16 years after federal law created it (opinion of Justice Ginsburg, at 59 n.26). States could also decline to take part in the expansion of Medicaid under the ACA, but if they did so then the statute authorized (though it didn't require) the Secretary of Health and Human Services to withhold from the state not only the new federal money that would have paid for the expansion but also the rest of the state's federal Medicaid funds. 42 U.S.C. § 1396c.

That's a big stick. But is it a "coercive" one?

One way to answer that is to consider whether Congress believed any states would choose not to participate in the Medicaid expansion. The answer seems to be no; state participation is an integral part of the ACA's effort to assure near-universal health coverage. But does this mean the statute is coercive or that it is attractive? After all, the ACA funds 100 % of all expansion costs through 2016, and after that “gradually decrease[] to a minimum of 90 percent.” (Roberts at 46.) What state concerned to support its people's health would want to resist such a sweet offer?

But it must be said (as the joint dissenters do, at 45) that Congress didn't just make an offer. It also added a penalty for rejecting the offer -- namely the risk of losing all current Medicaid funds, those already being disbursed by the state in existing health care arrangements. Moreover, existing federal Medicaid funds are major parts of many states' total budgets: between 10 and 15 % of the average state’s entire budget, according to Roberts (at 51); between 16 and 22 % of all total state expenditures, according to the joint dissenters (at 39 & n.14). Loss of this money would be extremely painful.

But suppose a state said "we want to run an industrial development fund with our medicaid money, and we're going to stop using those funds for health purposes." I don't think anyone would contend that the state was entitled to take the federal money and run. It is entirely legitimate, as a general matter, for Congress to say "we will spend only for X, not for Y." And that's true even though it means that the only way to get the money is for a state to use it on the programs Congress specifies. Even the joint dissenters (who are part of the majority in finding a violation of Congress’ spending clause powers) observe that “[w]hen Congress makes grants to the States, it customarily attaches conditions, and this Court has long held that the Constitution generally permits Congress to do this.” (Joint dissent at 31.)

What this points to is the proposition that what makes a financial penalty coercive is not its size per se, but its fairness. With this idea perhaps in mind (though I think not put in these term), the justices debate whether the Medicaid expansion is or is not sufficiently akin to the current Medicaid program that the expansion, and the penalties for declining it, fall within the existing law's specific declaration that Congress may enact changes at any time (42 U.S.C. § 1304). The justices seem to agree that some changes, and penalties, are covered by this provision, but they disagree about whether the very large changes wrought by the ACA were (with a majority saying they weren't).

But whether the changes were sufficiently predictable is not the whole of a fairness analysis. Congress can always change its laws, whether or not it reminds us of that in advance. Here, as Justice Ginsburg says (at pages 38 & 51 of her opinion), in theory it could have repealed "old Medicaid" and passed a brand new statute, "old and new Medicaid," and conditioned receipt of all Medicaid funds on compliance with the whole of the newly enacted law. Chief Justice Roberts responds that that would have been politically difficult (Roberts at 54 n.14); maybe so, but why does that matter -- either way -- to the measure of Congress' powers?

The justices finding a spending clause violation emphasize the idea that spending clause legislation is “in the nature of a contract” between the federal government and the states. (Roberts quotes this phrase from earlier precedents at 46; the joint dissenters use almost the same language at 33.) To my mind, however, this metaphor is quite imprecise. Congress may be setting the terms for contractual relations with the states, and it may (as cases have held) be essential that those terms be spelled out clearly. But Congress is also exercising its constitutional authority to tax and spend, and that authority should not be improperly undercut. Even with the aid of this metaphor, in any case, it remains a matter for debate just how much advance notice the states are fairly entitled to. In fact, Justice Ginsburg cites a Social Security case that invoked the same “right to repeal or amend” statutory provision that applied to Medicaid to say that “Congress put States on notice that the ‘Act created no contractual rights.’” (Ginsburg at 55, quoting Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 51-52 (1986).)

I think it is not possible to say what is unfair pressure without some baseline judgment about the respective roles of the federal and state governments. (This is an application of the insight of scholars considering the general concept of "coercion.") As Ginsburg says, the conservative joint dissenters (who are 4 of the 7 justices making up the majority on this point) at times seem to imply that a federal spending program is more likely to be coercive the larger it is: “On this logic, any federal spending program, sufficiently large and well-funded, would be unconstitutional.” (Ginsburg at 57 n.24.) This idea isn't absurd -- since state taxpayers fund the federal program, for a state to decline its share of the federal funds is a painful loss, more painful with each dollar. But it is also, from the national government's perspective, perverse – the more vigorously the government uses its spending power to achieve important purposes, the more it may run into constitutional trouble.

Meanwhile, it seems quite possible that for Justice Ginsburg essentially any spending amounts and conditions would be permissible so long as they aim at a legitimate governmental purpose and do not violate individuals' constitutional rights. She declares (at 59) that “[t]he coercion inquiry, therefore, appears to involve political judgments that defy judicial calculation.” If that is right, then the coercion test is a matter for politicians in Congress and the White House, and not the business of the Courts. At one point the Supreme Court, some decades ago, did take the view that the federal system could be relied upon to protect the states – from which all federal officials come – but that is no longer the law.

Between these two possible extremes, Chief Justice Roberts, joined by Justices Breyer and Kagan, seem to be looking for a common sense understanding of coercion – though their “gun to the head” rhetoric (at 51) obscures this point. The amount of money matters; the degree of advance warning matters; the degree of states' dependence on the status quo (here, the existing Medicaid programs and their funding) matters. Perhaps the essence of their position is that states are entitled to a meaningful choice -- a standard that is a long ways from the idea that states might be entitled to an "unfettered" choice, but also quite a ways from the idea that Congress is entitled to unfettered discretion in the conditions it attaches to its money. As Roberts puts it, at 49:

In the typical case we look to the States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace the federal policies as their own…. The States are separate and independent sovereigns. Sometimes they have to act like it.

In fact, even the joint dissenters speak in these terms, saying that the test of coercion is whether “States really have no choice” (joint dissent at 35), and affirming that “courts should not conclude that legislation is unconstitutional on this ground unless the coercive nature of an offer is unmistakably clear” (at 38) – though there is room in such language for quite a spectrum of concrete results in future cases.

In all of this, we are a long ways from the nation of our past. Chief Justice Roberts calls the states “separate and independent sovereigns,” but the “sovereignty” of the 13 original states, in 1776 when we declared independence or in 1787 when the draft constitution was put before the states for ratification, has little connection to our world. But in our world there is room for debate about just how preeminent the national government should be, just how independent the states should be. The ACA decision seems to somewhat strengthen the hand of the states. I'm not sure that's the best thing to do, but I'm not unhappy with this aspect of the case -- which strikes me as a reasonable approach to a hard constitutional issue.

The Affordable Care Act, Part II: what's broccoli got to do with it?

How strong was the commerce clause argument in the Affordable Care Act case (National Federation of Independent Business v. Sebelius)?

I have to say that I sympathize with the conservative justices’ concern that the commerce clause shouldn’t become the basis for congressional power over everything. Of course, it wouldn’t be – that is, no matter what Congress has power to regulate, it can’t regulate anything in violation of the Bill of Rights. Moreover, just at the moment Congress can hardly pass legislation at all, on any subject, and so it’s a bit difficult to say we’re all in peril of congressional overreaching right now. In fact, it’s difficult to see any Congress ever legislating in true and utter disregard of the states, from which every member of Congress is elected. Nevertheless, I agree with the basic idea that liberty is safer if no one unit of government is too powerful. Moreover, perhaps in part as a result of having studied South African law from the days before that country’s Parliament was subject to meaningful constitutional limits, I’m not entirely comfortable with trusting that Congress just won’t choose to exercise power once we’ve decided that it could if it wanted to.  

So I think the idea that there should be some limits on the commerce power has appeal. But what’s startling about this case is how implausible it is as the occasion for finding such limits. Health care is a huge part of the United States economy, the stuff of interstate commerce every minute of the day. Moreover, it seems quite clear that if the individual mandate had not been upheld, the elaborate scheme of the Act would have been greatly undercut. The various provisions of the Act designed to make health insurance available at reasonable prices to people with preexisting health problems – an essential feature of the law – would likely have been unsustainable without the premiums to be paid by healthy young people purchasing insurance because of the individual mandate. In fact, the four dissenters (Scalia, Kennedy, Thomas and Alito) were convinced that without the individual mandate and the expansion of Medicaid, the whole system would be so compromised that they would have thrown out the entire statute, every single section. So not only is health care clearly part of interstate commerce, but the individual mandate – the portion of the statute evaluated under the commerce clause – was necessary to the overall regulation of commerce achieved by the law, and so should have been seen as “necessary and proper” to Congress’ exercise of its power over interstate commerce.

Except for one thing. That was that, as the conservative justices (including Roberts) saw the matter, what Congress was regulating with the individual mandate was not activity but inactivity. There was no commerce to regulate, these justices believed, until the statute forced everyone into the insurance market by mandating that they get insurance. The conservative justices insisted that the power to regulate was not the power to create commerce but the power to manage what already existed, and that Congress had never previously been allowed to regulate the failure to engage in interstate commerce.

This argument strikes me as particularly weak. It may well be that Congress has never regulated commercial non-activity, and correspondingly that no precedent ever said that Congress could do that. It’s probably also true that no precedent ever said that Congress could not do it, and that the reason Congress didn’t regulate inactivity was that doing so wasn’t so deeply integral to a larger regulatory effort as it was in this case.

Yet one might respond that “inactivity” is simply, definitionally, beyond the range of both Congress’ commerce power and its adjunct, the necessary and proper clause. One might, but why? As Justice Ginsburg says in her separate opinion, dissenting on this issue, similar efforts were made in the 1930s, notably to limit Congress’ power to regulating activities with “direct” effects on interstate commerce, while barring Congress from dealing with activities whose effects, however large, were merely “indirect.” That idea has long been abandoned, for at least three good reasons, each applicable here too.

First, the words “direct” and “indirect” don’t appear in the commerce clause or the necessary and proper clause. However conservative the justices who employed these terms, they are judicial interjections rather than part of the constitutional text. “Activity” and “inactivity” are similarly absent from the constitutional text.

Second, and more or less by design, the concepts of “direct” and “indirect,” like those of “activity” and “inactivity,” have nothing to do with the actual impact of what people are doing (or not doing), either its impact on the economy or – the real point – its effects on their other citizens and residents of the United States. It isn’t a virtue to be deliberately disconnected from sensitivity to real impacts.

Third, these words – “direct” and “indirect,” “activity” and “inactivity” – are pretty deeply obscure. Justice Ginsburg argues at length that people who don’t buy health insurance are not inactive in the market for health care; they will, on the contrary, very likely consume health care within the foreseeable future, say 5 years. They may need that health care in a moment, since no one knows when injury or illness will strike without warning. So they are, as Ginsburg suggests, actually “active” in the market, via the route of “self-insurance.” For some, moreover, self-insurance will fail; they will wind up unable to pay for their health care when they actually need it, and these health care consumers are every day engaged in a process of free riding on the rest of us. Others – those whose premiums are so needed in order to pay for the costs of making insurance widely available to people who can’t currently purchase it – are not free riding but rather are resisting paying part of society’s bill; but they too may be seen as actively refusing to purchase, rather than simply being inactive. When is a “refusal to act” (or, to use another phrase, a “failure to act”) actually an “activity”? The constitution doesn’t say. Chief Justice Roberts says that someone who is sitting around and doing nothing is not in the “rest” market – but we’re a long ways from that case in talking about how people deal with the inevitability that they will need health care.

All of this makes me feel that it was simply a mistake to try to draw a line between what the commerce clause reaches and what it doesn’t that is based on the supposed distinction between “activity” and “inactivity.” But what about the broccoli argument? It is, after all, true that broccoli purchases, aggregated across all the consumers in the United States, have a substantial effect on interstate commerce, and so – as the conservatives said – the kind of logic I’m endorsing would suggest that the federal government could order us all to buy broccoli.

I don’t think the government should be able to make us buy broccoli. (Should it be able to prevent us from buying huge containers of sugared soft drinks? That’s actually an easier question under the commerce clause – buying soft drinks is an activity, by any lights, and so regulating that activity shouldn’t raise any of the questions that mandating insurance did.) But back to broccoli – I think that heading off this possible extension of federal power is a matter that deserves attention, and that finding a coherent rule that does this may not be easy. But broccoli is not this case, as lawyers say. We are a long ways from broccoli in thinking about how to finance health care for the American people, an issue of almost overwhelming commercial and economic import.

So it seems to me, in the end, that the conservatives picked the wrong case to draw a commerce clause limit in. Limits may be needed, but they should have been drawn so that this statute fell within them rather than beyond their bounds. And it would have been good to find limits that avoided the incoherence of the “activity”/”inactivity” line that is now apparently part of our constitutional law.

Why did Chief Justice Roberts vote to affirm (most of) the Affordable Care Act?

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.