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Peter M. Shane

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The Obamacare Surprise: Chief Justice Roberts' Brilliance as Institutional Strategist

Posted: 06/29/2012 11:08 am

No parlor game has more preoccupied constitutional law professors this year than predicting the outcome of NFIB v. Sibelius, the Supreme Court ruling on the Patient Protection and Affordable Care Act. Of the many dozens of predictions I had heard, many foresaw a 5-4 vote, but I know of no one who expected a 5-4 vote in favor of the individual mandate that would align Chief Justice John Roberts alone with the Court's four more liberal justices.

The Chief Justice's stance, however, is brilliant from the standpoint of institutional strategy.

He is no doubt aware of public discomfort with the Court's Citizen United decision, which opened the floodgates to unlimited corporate and union spending on elections.

He is presumably aware also of polls showing public confidence in the Court at its lowest ebb.

He obviously recognizes -- because President Obama all but said so -- that the president would be explicitly running "against the Court" if the PPACA were overturned.

As chief guardian of the federal judiciary's institutional legitimacy, all of this would naturally be worrisome to the chief justice.

So, what does Chief Justice Roberts do? First, he votes to uphold the Act, thus pre-empting the otherwise certain attacks on right-wing judicial activism, and casting his own activist decisions -- both past and presumably in the future -- in a new and more favorable light. After all, how can anyone accuse the chief justice of being a mere ideologue now that he has essentially saved the signature public policy achievement of a president who tried to keep him off the Supreme Court?

The chief justice's vote, of course, will sorely disappoint the most conservative faction of the Republican Party, but Roberts can quite plausibly take the view that opponents of the PPACA mandate do not need his help. The wisdom of the PPACA is an issue very much at the front and center of a national political campaign. Public opinion polls show most Americans still disapprove of the mandate. The case for judicial intervention to accomplish what voters can already accomplish seems weak.

At the same time, however, the Chief Justice wrote an opinion indicating that he agrees with his four more conservative colleagues on the reach of the Commerce Clause. Insofar as Roberts hopes to steer the Court toward a more narrowly channeled view of federal power, his opinion on the Commerce Clause -- though technically mere dicta -- really does the trick. His conservative academic constituency should be pleased, at least on this score.

Moreover, the Chief Justice was able to secure the concurrence of Justices Breyer and Kagan to overturning the PPACA's provisions on Medicaid expansion. The justices agreed that Congress could make Medicaid expansion a condition of new federal aid to the states, but that Congress could not constitutionally threaten to take away existing Medicaid funding.

Roberts' opinion does not state any clear new rule for when conditions imposed on federal aid to the states overstep the boundary between permissible "encouragement" and constitutionally impermissible "coercion." But NFIB v. Sibelius now stands as the first modern ruling limiting Congress' authority to bribe states into implementing federal programs.

In sum, thanks to Chief Justice Roberts, NFIB v. Sibelius marks a short-term defeat for the GOP on health care policy. At the same time, however, it protects state prerogatives, pre-empts charges of judicial activism, and gives Roberts cover for opinions yet to be written, which may well be quite activist (and all but certainly in a conservative direction), and which will now not so easily dismissed as mere ideology written into law.

At least in the eyes of someone whose own legal views frequently depart from those of the Chief Justice, this strikes me as a brilliant long-term institutional strategy for constitutional conservatives. In the long run, they may be grateful.

 

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