The Unprecedented Uniqueness of Chief Justice Roberts Opinion
Randy Barnett • July 5, 2012 5:14 pm
I have been out of town and not keeping up with all the chatter about the news that Chief Justice Roberts changed his vote after conference from invalidating the ACA, at least in part, to a vote to uphold it. The obvious question arises: was this switch motivated by legal considerations, or by the sort of political considerations that had been urged upon him, after the case was submitted, by supporters of the ACA? Of course, deciding what motivated any particular decision must necessarily be judged by circumstantial evidence. Unless he expressed his motivations to others, only the Chief Justice has personal knowledge of why exactly he changed his vote (assuming that the reporting of this vote change is accurate). The same was true of why five of the nine Supreme Court justices ruled the way they did on the remedy in Bush v. Gore after seven justices found an Equal Protection violation in the way Florida was counting its ballots. Yet, at least in academic circles, this speculation has taken on the status of ontological truth: The five “Republican” justices handed the election to “their” party’s candidate?
I have always believed that, that the circumstantial evidence for this proposition was thin, and I have resisted the suggestion that Bush v. Gore was a nakedly political decision, though of course I have to allow for the possibility that it was. The only “evidence” for this conclusion, apart from the party affiliation of the President who nominated them (which is pertinent) was the reasoning of the decision, which was not in an area of my specialty. I don’t wish to rehearse these arguments here, but I do know this was the circumstantial evidence that has persuaded many of my colleagues.
Which brings me to the remarkable nature of the legal analysis of Chief Justice Roberts opinion. He appears to have been the first person in the United States to have adopted this two-part legal analysis: (a) The individual insurance mandate is unconstitutional as beyond the Commerce and Necessary and Proper Clauses, but (b) the meaning of the “individual responsibility requirement” can only be upheld if given a “saving construction” to eliminate its character as a requirement, and render it an “option” to buy insurance or pay the tax, such that no one is actually bound or mandated by the requirement.
Before last week, I know of no legal authority in the United States who claimed to hold this position.
Of course, the government and many academics have made the tax power argument, but only (so far as I am aware) as (a) an additional basis for upholding the mandate and (b) as it existed in the statute. Not one of the many federal judges who have ruled upon the case adopted the view that the mandate was unconstitutional under the Commerce and Necessary and Proper Clause, and could only be saved under the tax power by a “construction” that deviated from its most obvious and most reasonable meaning. Perhaps I am mistaken, but I know of no academic supporter of the ACA who made this argument. Perhaps some law professor conceded that the individual mandate was unconstitutional unless saved by eliminating it’s “requirement.” The dissenting justices obviously did not hold this view. And, while the concurring justices did join in Justice Roberts opinion, thereby adopting its reasoning, their own view expressed in Justice Ginsburg’s opinion conforms to the views held by most academic defenders of the law.
Which leaves Chief Justice Roberts alone, of all the persons who ever have opined on this case in a careful matter, to hold the view he adopts in his opinion. Apparently, after preparing for and sitting through 3 days of oral argument, even Chief Justice Roberts did not hold this distinctive legal position to be persuasive – if he had imagined the view at all – until weeks afterwards.
So when focusing solely on the legal merits of the Chief Justice’s decision, as articulated in his opinion, we are entitled to factor into our analysis that no one before him ever thought that this legal position was compelling enough to advance it as their own.
Bear in mind that what defines circumstantial evidence, as opposed to direct evidence, is that, by definition, such evidence is consistent with more than one conclusion. A fingerprint at the scene of the crime is consistent with it being put there during the crime, or at some point prior to the crime, or even planted later. So too with the uniqueness of Chief Justice Roberts legal position.
Obviously, he could have been persuaded that the mandate was unconstitutional after oral argument, and sometime later he came also to be persuaded that he had a purely legal duty to give a “saving construction” of the statute, for reasons that have nothing whatsoever to do with the political implications to the Court of invalidating the President’s “signature” legislation by a 5-4 vote of Republican-nominated justices. But if the strength of the legal reasoning of an opinion is relevant to assessing the motivation of its author – as has been so long and loudly done for all five justices in the majority of the remedy portion of Bush v. Gore, then it seems pertinent as well that Chief Justice Roberts was the only person in two years to look at this legal dispute and reach this legal conclusion.
I wonder if there has ever been another case in Supreme Court history to be decided by a single justice’s legal theory that had not previously been held or advocated by any other person in the United States before he announced it. One even he had not deemed persuasive until some time after his initial conference vote (a fact that no one seems to dispute). Whether or not it was political, the uniqueness of Chief Justice Roberts’ opinion may well be unprecedented.
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