DECIDING VOTE

07.07.12

Chief Justice Roberts’ Obamacare Switch: Historical Roots

John Roberts’ change of heart in the Obamacare case is a reminder of how important the chief justice’s decision can be. David Miles on the historical roots of his controversial move.

So, did John G. Roberts Jr. change his mind in deciding to uphold President Obama’s health-care law? That would make him only the second Roberts on the Supreme Court in 75 years to switch his vote under mysterious circumstances.

Prior to the ruling coming down, the possibility of Chief Justice Roberts deciding the fate of the legislation seemed unlikely, with many observers arguing that if the health-care law survived, it would probably be thanks to the more predictable swing vote of Justice Anthony Kennedy. Yet if the tumultuous history of the Supreme Court tells us anything, it is that the role of chief justice can matter a great deal in constitutionally significant cases such as this one.

Marbury v. Madison (1803)the case which established the precedent, if not the authority, for the court to nullify congressional acts, has inevitably been mentioned since the decision on the Affordable Care Act came down. The analogy is correct in as much as Roberts seems to have been emulating Chief Justice John Marshall’s practice of articulating the court’s claim to specific powers over the co-dependent branches, but then diffusing any tension by ruling in favor of them. In the health-care opinion, Roberts drew a clear line in the sand for the future regarding the limits of congressional power under the Commerce Clause and the Necessary and Proper Clause, but then gave the other branches the victory on the legally shaky justification that the individual mandate could be construed as a tax.

While Marbury (which Roberts cited in his opinion) may help explain the ‘how’ behind the health-care decision, it doesn’t really explain the ‘why’. That case, after all, was decided at one of the court’s weakest moments. Jefferson’s Republicans were just waiting for the right moment or the wrong decision to cut the federal judiciary permanently down to size either by launching impeachment proceedings against individual justices or, even worse, ignoring the court’s rulings.

In the 20th Century, though, the Supreme Court has often taken on presidents and flexed its political muscle, effectively forcing Richard Nixon from office after its unanimous ruling on the Watergate tapes in U.S. v Nixon (1974), and installing George W. Bush in office in 2000. Roberts, then, was hardly likely to be fearful that the court’s rulings would be ignored anymore. So why did he feel it necessary to uphold a piece of legislation which he must surely have found troubling?

One possible reason is that modern chief justices undoubtedly feel the burden of history and no chief justice wants the stature of the court to be diminished on their watch. Roberts knows just how hard won the current authority of the judicial branch has been and the stakes remain high. As law professor Michael Stokes Paulsen observed, the consequences of losing “a political-constitutional battle just once, in a case that matters” might be sufficient to return the court to an early 19th Century state of enfeeblement.

If there is one period in the court’s history that Roberts is acutely sensitive to, perhaps even more than the Marshall era, it is the 1930s when the Hughes court invalidated much of Roosevelt’s New Deal legislation. Although Roberts has spoken of the debt that today’s court owes Hughes for defending the institution against FDR’s court packing plan, he is also aware of how his predecessor waged an equally vigorous campaign to convince Justice Owen Roberts to support the New Deal - the famous “switch in time which saved the nine.”

Modern chief justices undoubtedly feel the burden of history and no chief justice wants the stature of the court to be diminished on their watch.

One thing that the Court’s confrontation with FDR over the New Deal probably taught John Roberts was that the “weakest branch”, as Alexander Hamilton referred to the judiciary, should think twice before overturning the will of either the Executive Branch or Congress when the justices were divided. While a 5-4 vote to uphold legislation doesn’t usually upset the political apple cart, the fear of Hughes had been that so many rulings striking down the New Deal had been 5-4 decisions, that this was creating a dangerous constitutional confrontation between a popular president and an inherently feeble branch of government unable to speak with a unanimous voice.

Like Marshall in Marbury v. Madison, John Roberts seems to have recognized in his opinion on the health care law that the best way to conserve judicial authority in the long term is to use it rarely in practice while still claiming the right to wield it.

If there is a paradox here, it is that in trying to uphold the Court’s integrity and showing that it could rise above the ideological divisions between the conservative and liberal justices, Roberts had to craft one of the most politically sensitive opinions in recent history. Indeed, when reading the opinion one cannot help but be reminded of Jefferson’s accusation of “twistifications of the law” which he levelled at Marshall--a charge which the Sage of Monticello made only years later when it became clear just how significant Marbury had been in strengthening the Supreme Court’s authority.

The decision with regard to the health-care law seems to follow this pattern, yet it would be a mistake to see it as a case of judicial overreach. Roberts deserves credit for his imaginative reading of the Constitution and for according Congress the “proper respect” which the Court has shown the other branches since the 1930s.

Charged with interpreting the Constitution, even while trying to maintain the Supreme Court’s constitutionally ambiguous authority, chief justices such as John Marshall and John Roberts have had to approach cases such as Marbury and last week’s health care decision as the politically charged minefields that they are rather than the abstract legal questions they might wish them to be.