[EL] A Few Thoughts on the Chief Justice and Healthcare Decision from SCOTUS

Thu Jun 28 11:02:24 PDT 2012

I wonder what Rick Pildes will make of the Progressives relentless pressure
on the Court, and its effectiveness, in light of this development?  Recall
Pildes thought the Progressives' press onslaught was effort wasted in light
of the Montana opinion.

I read mainly campaign finance cases.  So, to my world view, this opinion
looks much like CJ Roberts's approach in *WRTL*.*  *Rather than join his
brethren to strike down the electioneering-communications-financing
restrictions outright, a newly minted Chief Justice Roberts, perhaps too
concerned with the optics of steering the ship of state, contorted himself
to hold that a "no reasonable interpretation other than" test can
*somehow*mark a bright line.

Today, he has held that the Obamacare *penatly* is merely a "tax."

The apparent concern for optics is concerning, for it only encourages his
opponents in the chattering class.

My compliments to the tag team of vanden Heuvel, Rosen, and Lithwick, on
the one hand, and the drafters of the law who ditched its severability
clause, on the other.  The combination was an all-or-nothing gambit, for
all the marbles, designed to make the Court blink.  And Roberts blinked
today.

Here's hoping Roberts will buck up -- as he did from *WRTL* to *Citizens
United* -- when the inevitable challenges to the unconstitutional structure
of IPAB arise.

Here are two other thoughts I wish I could suppress:

Is there any chance anyone will, with a knowing nod, dare call "The Roberts
Court" "The Scalia Court" after today's ruling?

Is there any chance Justice Kennedy can reclaim his stature as the Court's
highly-courted, fawned-over and feted "swing justice" in the balance of his
lifetime after Roberts's vote today?

I don't see how.  Here's hoping such base calculations had no role in the
Roberts's contortions.

Steve Hoersting

On Thu, Jun 28, 2012 at 12:14 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  A Few Thoughts on the Chief Justice and Healthcare Decision from SCOTUS<http://electionlawblog.org/?p=36309>
> Posted on June 28, 2012 9:13 am <http://electionlawblog.org/?p=36309> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> 1. I am less surprised by the outcome of this case (I switched my
> expectations after reading Orin Kerr’s dissection<http://www.volokh.com/2012/06/19/foolishly-reading-the-tea-leaves-of-justice-ginsburgs-speech-at-the-acs/>of Justice Ginsburg’s recent speech at the American Constitution Society
> convention) than I am by the vote: I expected that if the Court voted to
> uphold the mandate, it would have been a 6-3 vote, with Kennedy voting
> (internally) to uphold the law and the Chief going along with Kennedy.
> Instead, Kennedy was the co-author of a rare jointly-authored dissent for
> all of the dissenting Justices, one which not only rejected the commerce
> clause and other arguments for the mandate, but also would have struck down
> the *entire health care law*.
>
> 2. What explains Roberts vote?  David Bernstein remarks<http://www.volokh.com/2012/06/28/the-perils-of-shortsightedness/>,
> with some truth, that Roberts is much more pro-government than Justice
> Alito.  But I think too other factors are important here too.  First,
> Roberts cares much more about the institutional legitimacy of the Court and
> elite public opinion than the other Justices.  Larry Solum rightly remarks
> that it would have been a tectonic shift<http://lsolum.typepad.com/legaltheory/2012/06/the-decision-to-uphold-the-mandate-as-a-gestalt-shift-in-constitutional-law.html>for the Court to have struck down such a major federal law, especially when
> the (original) expectations of almost all Court scholars of all political
> stripes was that the Court’s precedents made this an easy case to sustain
> the mandate.  Roberts wanted to avoid this result.  Second, Roberts’
> passion is elsewhere.  He’d rather use his political capital on issues in
> which he is passionate, most importantly on the issue of race.  With
> affirmative action and the Voting Rights Act coming before the Court, don’t
> expect Roberts<http://www.huffingtonpost.com/adam-winkler/the-roberts-court-is-born_b_1634070.html>to side with liberals in those cases.
>
> 3. Roberts also wrote his opinion in a way to narrow the scope of the
> commerce power, and to legitimate the Randy Barnett theory for future
> cases.  I have not yet parsed the opinion enough to know how big a deal
> this is, but there are now 5 Justices rejecting the older, established
> commerce clause jurisprudence which gave Congress almost unlimited power
> when it came to economic legislation.
>
> 4. Ironically, Roberts went out of his way to reach those commerce clause
> issues, which he did not need to reach given his holding on the tax power.
> Once again, the Chief has manipulated the doctrine of constitutional
> avoidance <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1436669> to
> do what he wanted to do in a high profile, important case. His opinion also
> splits the finest hairs in finding the law to be a tax for constitutional
> purposes but not for the anti-injunction act.
>
> 5. Finally, I wonder about leaks from the Court about Roberts changing his
> mind.  David Bernstein remarks<http://www.volokh.com/2012/06/28/was-scalias-dissent-originally-a-majority-opinion/>that “Back in May, there were rumors floating around relevant legal circles
> that a key vote was taking place, and that Roberts was feeling tremendous
> pressure from unidentified circles to vote to uphold the mandate.”  This
> would explain why George Will, Kathleen Parker and others wrote opinion
> pieces to try to buck up the Chief Justice.  In this Politico oped,<http://www.politico.com/news/stories/0512/76919.html>I noted how ludicrous it was to talk about the Chief facing threats,
> pressure, and bullying.  But if the Chief is sensitive to the institutional
> legitimacy of the Court and a desire to preserve his political capital for
> other reasons, then it is possible he was waffling in the face of the
> torrent of commentary.  But how did the waffling leak out?  An interesting
> question to say the least.
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> --
> Rick Hasen
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-- 
Stephen M. Hoersting
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