Rosen on Roberts as Statesman

Jeff Rosen not surprisingly praises Chief Justice Roberts’s statesmanship in upholding the Affordable Care Act and protecting the Supreme Court’s reputations and legitimacy from accusations of partisan decisionmaking.

Here’s what Rosen says about Roberts:

All of these instincts converged in the health care case, in which Roberts set aside his ideological preference to protect the Court from a decision along party lines that would have imperiled its legitimacy. After initially siding with the conservatives, Roberts tried to persuade his liberal and conservative colleagues to converge around a result that would avoid a sweeping 5–4 ruling along party lines, according to Crawford. When that proved impossible, he chose the least disruptive path, upholding the mandate by finding that it was within Congress’s taxing power. The decision revealed the chief justice as a master strategist with a nuanced concern for institutional integrity that is less dramatic or nefarious than the characterizations advanced by partisans on the left or the right.

Another way of stating this is that Roberts set aside his own best understanding of what the Constitution demands to protect the Court from accusations of partisanship. He tried but failed to get cover for this by get some sort of consensus or at least plurality opinion, but he was unable to persuade even one other Justice that the Court’s “legitimacy” is more important that their own understandings of constitutional law in a historic case. Roberts therefore was reduced to writing an embarrassingly convoluted opinion relying on the spending clause. As a result, he gets harsh criticism from conservatives, a huge decline in the Court’s perceived legitimacy from Republicans, bitter backbiting leaks from some of his colleagues. Meanwhile, he retains the severe mistrust of liberals, many of who think that his opinion was part of a nefarious long-term strategy to undermine the regulatory state and/or help Mitt Romney get elected. But the good news is that Jeff Rosen thinks he’s a good Chief Justice.

Whether Roberts voted correctly or not, his handling of the whole matter hardly inspires confidence. A Chief Justice getting praise from commenters like Rosen for avoiding getting the Court into a political tangle by strategically changing his vote will in the long-term cause the Court’s legitimacy to suffer.

Maybe Roberts should have just voted with the liberals on the Court from the get-go. Maybe he should have reserved his vote until he decided how he finally wanted to handle the case. Maybe he should have engaged, as some great chiefs did in the past, in backroom arm-twisting and logrolling starting many month ago to try to get something that looked much less like a divided mess out of his colleagues. Maybe he should have insisted on holding the case over for additional briefing and reargument in the Fall on the tax issue. Maybe given the divisions on the Court, there’s not much he could have done. Or maybe he does have some long-term Machiavellian strategy.

But one thing seems pretty certain: the way Roberts handled the case has not actually served the goal of enhancing the Court’s reputation of being “above politics.”

UPDATE: Let’s say Roberts thought from the getgo that prudential concerns mandated upholding the ACA if he could find any legally plausible way to do so. He could have decided months before the case was argued that the tax argument was likely the way to go, asked for supplemental briefing on the issue (given that no lower court had relied on it and it was barely briefed), asked many questions about it in oral argument, and voted to uphold the law on the tax issue in the initial conference. I’m sure his conservative colleagues would still have been disappointed, but they wouldn’t have been angry. That would have been a statesmanlike way to go about things.