Carrie Severino Responds to Jeff Rosen

On Bench Memos Carrie Severino offers her take on Jeff Rosen’s challenge to Chief Justice Roberts:

In Rosen’s world, avoiding 5–4 decisions at all costs is apparently a higher virtue than following the law. But, for the sake of argument, let’s set aside the question whether the law obligated the chief justice to vote a certain way. And let us also stipulate, for the sake of argument, that Rosen is right to place such high value on consensus. Rosen’s assertion that the chief justice would be an ”irredeemable failure” is still a dramatic overstatement.

First, it ignores the fact that the chief can only directly control his own vote and therefore would only be in a position to flip a 5–4 decision against the mandate to another 5–4 decision in favor of it. If Rosen is really concerned more about the vote counts than the ultimate results, both results would leave identical black marks on the chief justice’s record.

To the extent that Rosen hopes the chief justice will engage in lobbying of his colleagues reminiscent of the Warren-era court, such a strategy is inherently limited. Even if the chief justice were able to articulate a narrow decision that avoided making any major constitutional ruling (and if there were an obvious route to such a ruling, it is hard to imagine another of the many parties and amici would not have hit upon it), a determined coalition of four liberal justices would still be in a position to foreclose a consensus result simply by rallying around a position they knew none of the conservatives would accept.

The disproportionate weight Rosen places on this case also suggests he is more concerned about the outcome of the case than progressing toward unanimity. Take, for example, Sackett vs. EPA and Hosanna-Tabor, two of this term’s most important cases that could have been decided 5–4. Both were decided unanimously. Apparently a 5–4 ruling in the Obamacare case would cancel out these significant unanimous decisions. I would be curious to hear Rosen’s explanation.