My Politico Post Assessing the Individual Mandate Decision

The Politico Arena recently noted that some “conservative activists” have turned against Chief Justice John Roberts and asked contributors whether last week’s health care decision can be considered a “victory” for conservatives. My answer is here:

Last week’s Supreme Court decision upholding the individual health insurance mandate was a painful defeat for those who wanted the mandate to be invalidated. But it also endorses some of our most important arguments.

Chief Justice John Roberts’ opinion for the Court actually rejects the federal government’s main arguments in favor of the mandate: that it is authorized by the Commerce Clause and Necessary and Proper Clause….

Sadly, Roberts undermined much of the impact of his reasoning by ruling that the mandate is constitutional because it is a tax. His dubious reasoning would allow Congress to use the tax power to mandate almost anything so long as the penalty for violating the mandate is a monetary fine structured similarly to the health insurance mandate….

Conservatives and my fellow libertarians should not be angry at Roberts merely because he voted against us in a close and difficult case. But it is disappointing that he did so on the basis of a dubious tax argument that had been uniformly rejected by every lower court that ruled on it…

[P]eople of all political persuasions have reason to be troubled by recent revelations suggesting that the Chief Justice initially intended to strike down the mandate and then changed his mind not because of legal considerations, but in order to protect his own and the Court’s reputation against attacks by those who would have been angered by a ruling striking down the mandate.

It is not yet clear whether Roberts really was motivated by such considerations, and we should keep an open mind on the subject…. But if reputational concerns really were at the heart of his switch, it is very sad that the highest-ranking judge in the land valued reputation more than his duty to enforce the Constitution….

Sometimes, the Court must strike down laws that violate the Constitution even when doing so is highly unpopular and might subject the Court to far greater criticism than Roberts would have gotten for ruling against a mandate that the vast majority of the public actually wanted to see invalidated

In this case, liberals may have been the beneficiaries of Roberts’ sensitivity to potential attacks on the Court’s reputation. In the future, it might be conservatives or others. Either way, courting popularity is not the proper function of a Supreme Court justice, at least not at the expense of his duty to the law.

UPDATE: The part of Roberts’ opinion discussing the Commerce Clause and Necessary and Proper Clause is not technically labeled the “opinion of the Court.” I should not have called it such. I was writing in a hurry last night, due in part to the blackout here in Arlington, VA, and did not check the phrasing carefully. However, I do still believe that part is controlling precedent for reasons I indicated here, and it is significant that the conclusion it reaches has the support of five justices.

UPDATE #2: I should add that although the four liberal justices did not join the part of Roberts’ opinion explaining why the Commerce Clause doesn’t authorize the mandate, they did join the part that says this conclusion is one of the holdings of the Court. That is significant for its precedential value, as I explain here.