Legitimacy, Popularity, and the Individual Mandate Decision

In response to my post arguing that Chief Justice Roberts’ vote in the individual mandate decision failed to enhance the Supreme Court’s legitimacy, co-blogger Orin Kerr argues that Roberts may have been motivated by a different definition of legitimacy, one seemingly unrelated to popularity:

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….

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….

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.

Orin seems to be using the term “legitimacy” in a way different than most other commentators on the Supreme Court do. Usually, it is used to denote the Supreme Court’s reputation with the general public or with some subset of legal or political elites. I would also note that the “speculation” that Roberts sought to enhance the Court’s reputation in the eyes of legal elites is not my personal invention, but rather the claim made by various Supreme Court leakers. As I have written several times, we don’t have enough evidence to prove or disprove the claim, though it strikes me as plausible.

Whatever the true explanation for Roberts’ decision, Orin’s theory is unlikely to be it. If Roberts has an aversion to entering the “political thicket” – in the sense of making decisions striking down politically important and controversial laws – he would not have voted as he did in Citizens United, Parents Involved and other similar cases. Each of those decisions was highly controversial and was denounced by critics as “political.” In Orin’s terms, Roberts was certainly a big part of “the story of the game” in those cases; he quite obviously was not “unobtrusive.”

Moreover, if this was the motivation for his vote in the individual mandate case, it is difficult to see why he originally wanted to strike it down. After all, he surely knew for many months that the individual mandate was a centerpiece of the president’s most important legislative accomplishment and that any decision striking it down would be politically controversial.

The sequence of events therefore renders Orin’s theory unlikely. That, of course, does not prove that Roberts switched in order to enhance the Court’s reputation with legal elites. But the latter theory does at least fit the timeline, since he seems to have switched right around the time that many such elites started aggressively claiming that a decision striking down the mandate would not only be wrong, but a catastrophe for the Court’s legitimacy. It is true, of course, that he bucked those same elites in earlier cases. But none of them involved as extensive an elite campaign to challenge the Court’s legitimacy, certainly not before the decision was even reached.

It’s also worth noting that a judge’s refusal to strike down what he believes to be an unconstitutional law because of its high visibility and great political significance is itself a political decision. To borrow from Roberts’ famous analogy between umpires and judges, it is similar to an umpire refusing to call a strike on a star hitter batting in a key situation in the World Series, even though he would have called the same pitch a strike on a less important occasion with a less famous hitter at the plate. As Roberts himself put it, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.” [emphasis added]. A judge who applies the rules differently depending on the importance of the law at stake is making the rules rather than merely applying them.

I still think it’s possible that Roberts switched for some other reason, including that he simply just came to like the federal government’s tax argument on legal grounds. It’s also possible that he had more than one motive. The purpose of my posts on Roberts’ switch was not to definitively settle the question of why he did it, but rather to explore the legal and political implications of his decision. Obviously, I recognize that the latter depends in part on the former. So I have always been careful to note that we do not have anything approaching definitive evidence of Roberts’ motives.