Ilya’s post on the Chief Justice’s vote in Sebelius and the Supreme Court’s legitimacy brings up an important tension in the popular belief that Roberts switched his vote because he caved to outside pressure. People who cave to pressure generally switch to do what is popular, not what is unpopular. But there’s a way out of the conflict, and that is recognizing the important difference between the legitimacy of judicial decisions and the popularity of those decisions.
Let’s start with what we know. First, public opinion strongly favored striking down the mandate. Roberts cares about public opinion, the argument runs, so he must have known that striking down the mandate was the popular thing to do by wide margins (and by a nearly unanimous position among conservatives such as himself). The second thing we know is that Roberts switched his vote at some point from the popular position of striking down the mandate to the unpopular position of upholding the mandate. We don’t know exactly why Roberts switched his vote, although there is speculation that he did so because he was concerned with the legitimacy of the Court. Ilya implicitly equates this with being concerned with the popularity of the Court, so he looks to opinion polls to determine whether the health care cases made the Court more or less legitimate in the eyes of the public. And from this perspective, the Chief Justice’s game plan backfired: Roberts tried to improve the Court’s legitimacy but only hurt it.
If Roberts is thought to have been influenced by public pressure, though, wouldn’t that pressure push him to strike down the mandate, not uphold it? Ilya speculates that Roberts was trying to gain the acceptance of “traditional liberal legal elites” like liberal law professors. They held the opposite view from the public, so perhaps Roberts was caving into their pressure despite public opinion as a whole. Ilya’s lesson is that judges wanting to be popular should realize that there’s a lot more to popularity than the views of liberal elites.
But Ilya’s speculation that Roberts was trying to please “liberal legal elites” strikes me as far-fetched. Until the mandate case, Roberts has been a reliable conservative vote. He has written and joined decisions that greatly enraged the “traditional liberal legal elites,” such as Citizens United and and Parents Involved v. Seattle School District. And when given the chance, he has poked fun at law professors with a smile. Given his record, Roberts doesn’t strike me as the kind of guy who frets about pleasing the New York Times editorial page. To the contrary, he strikes me as the type who (like most of us on the right) sees upsetting the Times as a sign of a job well done.
The way out of the puzzle is to recognize the difference between legitimacy and popularity. Chief Justice Roberts cares about the legitimacy of the Supreme Court. He has a conception of the judicial role in which judges generally don’t jump into the political thicket and make themselves major players on the political scene. This was the often-ignored point of his umpire analogy during his confirmation hearings: “Nobody ever went to a ball game to see the umpire.” The umpire is legitimate when he is unobtrusively calling pitches, but if he makes himself the story of the game, something has gone wrong. We can agree or disagree with this conception of the judicial role. But this is a very different concept than popularity. It will often be popular for judges to jump into the political thicket. Some laws are popular at a state level but unpopular at a national level. Other laws are unpopular parts of legislation that just squeaked through Congress. The public will generally approve when a court strikes down a law that people don’t like. But that’s just what makes a judge popular, not what makes a judge legitimate. To go back to the baseball analogy, an umpire who wants to be popular can just make every call in favor of the home team. But that’s a bad umpire, even if the fans love him.
In short, legitimacy and popularity are very different ideas. We don’t know why Roberts changed his vote. But if it’s true that he did so out of concerns with legitimacy, that is very different from saying that he did so because he wanted the Court to be popular.