Chief Justice John Roberts has certainly set off a lot of speculation concerning his views of the Affordable Care Act. In his opinion, he indicated that judges should find a reason, if they can, to uphold laws passed by elected legislatures, and he found that the Act's individual mandate was permissible under the federal government's taxing authority. This isn't very persuasive. For one thing, he needn't have ranged so far, for the federal government's power to regulate interstate commerce affords a perfectly good reason to uphold the mandate. For another thing, he is contradicted by his own record. No one seriously believes that in, for example, the Citizens United case, Roberts really, really wanted to uphold McCain-Feingold, but, after exercising his intellect to its full extent, was unable to locate any constitutional ground on which the law could stand.
Since it's hard to believe him on the subject of his own thinking, let us consider the thoughts of others about his thinking. There is a consensus that the chief justice, who is only 57 and could be the chief justice for another quarter century or more, is playing a "long game." The most charitable version is that he cares about the institution of the Supreme Court--he's a "Burke, not a burka," in the phrase-making of Hendrik Hertzberg. The Court put Bush in the White House, then in Citizens United handed Republicans a gift too big to wrap. In both cases, the legal reasoning was . . . --dubious. If it had on similarly flimsy grounds proceeded to throw out the signature achievement of Obama's first term, the umpire (to use a metaphor Roberts deployed during his confirmation hearings) might have called, "Strike 3!" The Court is in danger of being viewed as another instrument in the national food-fight, a functional arm of the Republican party, like Fox News, and Roberts knows it. In the end, he cares more for the Court than for his party.
Ronald Dworkin is a spokesman for a related but less cheery take on Roberts's decision. In this view, the chief justice, instead of looking backward and worrying about strike 3 of 3, was looking forward and worrying about strike 6 of 6. In the next year, the Court will take up cases regarding voting rights, same-sex marriage, and affirmative action in school admissions. If, in the afterglow of having thrown out the chief legislative achievement of Obama's first term, the conservative bloc were to prevail in all three of next year's high-profile cases, and you add in for good measure Bush v Gore and Citizens United, the case for the Court being viewed as a kind of Republican muscle, the bouncer at the door, becomes disturbingly clear.
These interpretations are plainly not mutually exclusive. In both, Roberts is concerned for the institutional health of the Supreme Court. The first casts him in a favorable light (especially if you approve of Edmund Burke). The second is disconcerting for what it suggests he thinks the Court is poised to do next year.
But, this year, regarding the Affordable Care Act, the Court, for whatever reason, did the right thing, and the lives of millions of Americans will be improved. Which is why even Dworkin's piece begins, "Above all, we should celebrate."
