Roberts’ role assures place in history



If the Supreme Court had wanted to make history, it could have: Striking down the individual mandate in the health care law would have been the most weighty Supreme Court ruling since Franklin Roosevelt’s first New Deal was ruled unconstitutional three-quarters of a century ago.

By upholding the individual mandate — after honestly acknowledging that making people buy insurance is a tax — the court chose the more cautious course.

In the spirit of Justices Oliver Wendell Holmes and Felix Frankfurter, the court adopted the strategy of judicial restraint. The man most responsible for this comes as a surprise: Chief Justice John Roberts, a tried and tested conservative appointed by George W. Bush to the near-universal plaudits of the right. Roberts said in his confirmation hearings that he believed in judicial restraint. That has become a cliché, repeated by every would-be judge raising a right hand before a Senate committee. When the chips were down, Roberts did exactly what he had sworn to do under oath. He stayed the court’s hand and rejected activism.

The core logic of the holding was a model of analytic clarity. To require people to buy insurance or else pay a penalty is a tax. The Constitution gives Congress the power to tax in order to accomplish its legitimate goals. Calling the mandate what it in fact is makes this result crystal-clear.

Honesty is best policy

These words sent a direct message to Democratic politicians who refused to call the mandate a tax: You should have told us the truth in the first place. Had the mandate been called a tax from the beginning, all this legal wrangling might never have occurred. It would have been essentially impossible to argue that the mandate was unconstitutional if the bill had directly relied upon the taxing power.

What is most shocking about the outcome is who brought it about: Roberts, not Justice Anthony Kennedy, cast the deciding fifth vote to uphold the law. When Roberts was up for confirmation, many liberal insiders to the world of the Supreme Court bar were optimistic that he would be a reasonable and evenhanded chief: A conservative, of course, but one who played by the rules. Once he became chief justice, however, Roberts seemed to many liberals to have reverted to his origins as a clerk for former Chief Justice William Rehnquist and a longtime supporter of the Federalist Society, a powerful conservative legal organization. His decisions have for the most part been consistent with those of Justices Samuel Alito, Antonin Scalia and Clarence Thomas, the conservative bloc.

Roberts did wave the conservative standard on the question of Congress’s power to regulate commerce, squarely stating that the regulation of inaction would have been too great an extension of the Commerce Clause power. Yet he balked at stopping Congress from imposing a tax. Conservatives who want to make the health care plan into a central campaign issue can take some small solace in that the court has called the individual mandate a tax. But there will surely be major shock among those who counted on Roberts to toe the party line, as there is shock among those liberals who had given up on the vision of Roberts as a lawyer’s lawyer.

Roberts now enters the pantheon of true judicial conservatives, judges who hold back from activist results no matter how it affects presidential politics. By helping the court avoid making history, Roberts’ place in history is assured.

Noah Feldman, a Harvard law professor and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist.