How John Roberts ended up as America’s Big Chief.
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And so it came to pass that, in NFIB v. Sebelius, the constitutional theory held by 99 percent of all law professors—that Congress had a plenary power to adopt any means to effectuate a scheme of economic regulation—could not command five votes on the Supreme Court. Instead, five justices affirmed the position that 1) the commerce power of Congress was limited, 2) the Court would enforce these limits, 3) the individual insurance mandate exceeded these limits, and 4) the Necessary and Proper Clause did not provide an escape from these limits. Compelling individuals to engage in economic activity was an “improper” means of executing Congress’ power over interstate commerce. As an added bonus, the Court also held 7–2 that Congress had exceeded its spending power when it threatened to withhold all Medicaid funding from States that did not “agree” to a massive expansion of the program.
All this was a vital victory for the Constitution, especially because accepting the government’s theory for the mandate’s constitutionality would have been disastrous. But having affirmed all this, the conservative philosophy of judicial restraint kicked in to deprive us of our objective: getting rid of Obamacare.
According to reports, having voted to invalidate the individual insurance mandate in the first conference vote after oral argument, Chief Justice Roberts changed his vote to uphold the law. And he changed his vote only after the Court was bitterly attacked by the left when, after oral argument, it appeared that the ACA was in trouble. On the Monday following argument, President Obama complained that “for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint— that an unelected group of people would somehow overturn a duly constituted and passed law.”
Later, the critics’ fire was trained on Roberts in particular. After praising the “judicial restraint” favored by some conservatives, Jeffrey Rosen wrote in the New Republic: “This, then, is John Roberts’ moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace.” Were the Roberts Court to invalidate the ACA in a 5–4 vote, “then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure.” Not only that, but “by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance.”
SO THERE YOU HAVE IT. Chief Justice Roberts, whom Rosen now calls the “big Chief,” picked the New Deal model of judicial restraint over holding Congress to its enumerated powers. After finding the mandate unconstitutional under the Commerce and Necessary and Proper clauses, he then gave the statute a “saving construction” by eliminating the “requirement” part and upholding the remaining “penalty” as a tax because it was too low to coerce compliance. So, instead of unconstitutionally requiring all Americans to buy insurance, which he admitted was the obvious and natural reading of the statute, Roberts rewrote the law to give Americans the “option” of buying insurance or paying the “tax.” According to Rosen, “Roberts had decided to protect the long-term institutional interests of the Court rather than embrace the conservative ideological agenda in its most radical dimensions.”
So the good news is that, 70 years after the New Deal, there were just four votes for the progressive’s vision of unlimited federal power to address any national problem. But the bad news is that, some 30 years after Ronald Reagan started nominating judges to the bench, the Supreme Court could only muster four votes to invalidate a law that five justices had concluded exceeded the enumerated powers of Congress, because the fifth vote buckled under the self-imposed duty of judicial restraint. That a majority of Americans believed that the mandate was unconstitutional, and that the Court would so rule, was not ultimately as important as what Jeff Rosen and others on the left would say.
Now we will have an election to decide the ultimate fate of Obamacare. But this election should also be about who will be selected to serve on the Supreme Court. Should Republican presidents continue to nominate judicial conservatives who are enthralled with the New Dealers’ mantra of judicial restraint? Or should they nominate constitutional conservatives who believe that it is not “activism” for judges to enforce the whole Constitution? All future nominees should be vetted not only for their views on the meaning of the Constitution, but for their willingness to enforce that meaning.
For over two years, the nation was given a wonderful lesson in constitutional law: the enumerated powers have limits that Congress can exceed. In June, the electorate was given a different lesson in judicial philosophy: judicial restraint in enforcing these limits is no virtue. In November and beyond, we will see how well these lessons were learned.
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