The political genius of John Roberts

June 28, 2012

After Chief Justice Charles Evan Hughes deftly beat back Franklin Delano Roosevelt's court-packing proposal, FDR said, with grudging admiration, that Hughes was the best politician in the country. "That was hardly the way Hughes would have chosen to be remembered," writes James Simon in "FDR and Chief Justice Hughes," "though there was much truth in the president's remark."

I doubt Roberts wants to be known for his political skills, either. But in today's decision, he showed that, like Hughes before him, he's got those skills in spades.

The decision today is being reported as 5-4, with Roberts voting with the liberals. Akhil Reid Amar, a constitutional scholar at Yale Law, sees it differently. "The decision was 4-1-4," he said.


(Michael Conroy/Associated Press)

Here's what Amar means: The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn't. If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government's power to force states to carry out the planned expansion of Medicaid. "He was on-board with the basic challenge," said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. "He was on the conservative side of the controversial issues."

His break with the conservatives, and his only point of agreement with the liberals, was in finding that the mandate was a "tax" — a finding that, while extremely important for the future of the Affordable Care Act, is not a hugely consequential legal question.

"We won," said Georgetown law professor Randy Barnett, who was perhaps the most influential legal opponent of the Affordable Care Act. "All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. Yet we end up with the opposite outcome. It’s just weird."

One interpretation is that Roberts was playing umpire today: He was simply calling balls and strikes, as he promised to do in his Senate confirmation hearings. But as Barnett's comments suggest, the legal reasoning in his decision went far beyond the role of umpire. He made it a point to affirm the once-radical arguments that animated the conservative challenge to the legislation. But then he upheld it on a technicality.

It's as if an umpire tweaked the rules to favor his team in the future, but obscured the changes by calling a particular contest for the other side. "John Roberts is playing at a different game than the rest of us," wrote Red State's Erick Erickson. "We’re on poker. He’s on chess."

By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He's made himself bulletproof against insinuations that he's animated by party allegiances.

But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government's power to regulate interstate commerce, today's decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.

"For those of us who oppose the Affordable Care Act as a policy matter, this is a bad day," Barnett said. "For those of us in this fight to preserve the limits of constitutional government, this is not a bad day."

And for President Obama, who has labored without success to find a bipartisan foothold in his advocacy for the Affordable Care Act, Roberts's coup in writing an opinion that has found support on both sides must inspire some grudging respect.

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