“Statesmanship” and the Individual Mandate Decision

In this recent post, political scientist Steven Teles argues that Chief Justice John Roberts’ decision to uphold the individual mandate was motivated by “statesmanship”:

[M]y guess is that Roberts would have joined a decision more or less striking down the mandate but severing it from the rest of the law, but he couldn’t get the rest of the four justices to go along with him. So he ended up having to cut a deal with the liberals….

Roberts, no doubt influenced by his position as Chief Justice, made the call that he could pull at the seam of the law pretty hard but couldn’t unravel it completely. Doing so really would put the Supreme Court in a state of outright war with the Democratic Party. There is an element in Supreme Court decision-making that can be explained by statesmanship rather than jurisprudence. Law professors are unlikely to be very impressed with that element, but it’s a real, permanent and unavoidable aspect of our system of government. On no really important aspect of jurisprudence did Roberts actually break from his conservative brethren, but he did make a different political judgment than they did—not on what the Court could get away with, but what was really appropriate for it to do on a matter of such great policy significance.

Like Teles, I don’t doubt that political considerations influence Supreme Court decision-making, though, in all but very exceptional cases, I take a dimmer view of such decisions than he does. I am a big fan of Teles’ academic work on legal issues. But the particular scenario he envisions in this case is unpersuasive.

If Roberts believed that the individual mandate should be invalidated, but severed from the rest of the law, he did not need the support of the other four conservatives to achieve that result. He could simply have joined with them in striking down the mandate, but also written a separate concurring opinion on severability holding that the rest of the law (or all, but a few parts), is severable and so has to remain. He could have achieved that result either by relying on the four liberals to give him the votes he needed on the severability issue or writing a concurring opinion that, because it would be the narrowest one in the majority, would be controlling under Marks v. United States.

More generally, I highly doubt that the Democratic Party would have gone to “outright war” with the Court over a decision that would have enjoyed overwhelming public support, and especially after the Court gave the Democrats important victories in every other major case decided this year, such as Arizona v. United States. If the Democrats did launch a “war” over the decision, the Court would almost certainly have prevailed and emerged stronger than before.

I’m not sure why Roberts switched his vote in the mandate case. Perhaps he really was almost the only jurist in the world who bought the government’s tax argument, while rejecting their much stronger Commerce Clause and Necessary and Proper Clause arguments. Perhaps he was worried about his own and the Court’s reputation in the eyes of key legal elites, as various leaks have alleged. But I highly doubt the reason he changed his mind was because he couldn’t get the four conservatives to agree with him on severability, and then decided that “statesmanshp” required him to uphold the mandate, even though he could easily have severed the mandate from the rest of the law even without the support of the other four.