Understanding John Roberts

05 Jul

Chief Justice John Roberts was the deciding vote in the Supreme Court’s recent ruling on the Affordable Care Act. In fact, he authored the majority opinion outlining that the law was not a valid use of the Commerce Clause, but was a valid use of Congress’ ability to tax and spend. While I am not a lawyer, I did read the opinion, and I think it was a pretty cogent argument. It hinged on how one chose to define the market, but I agree that if the broad definition was used, things like food and shelter are universal markets in the same way that health care is, and that does present a somewhat slippery slope. The power to tax makes much more sense.

On the one hand, then, I think that Roberts simply allowed his opinion to be shaped by a sound interpretation of the law, legal precedent, and his understanding of the Constittuion. Another part of me, though, doubts this. While it’s sad to admit, ever since the Supreme Court ended the Florida recount early and basically appointed George W. Bush as the King in Chief, I’ve been dubious. All the more so when the Roberts court granted corporations the rights of persons, free to give unlimited campaign contributions. I don’t think I’m alone in this view. After all, most of the pre-ruling chatter had Justice Kennedy as the deciding swing vote. For the record, he voted to strike down the individual mandate. No one seemed to consider for a moment that Roberts would align with the more liberal judges to uphold the law. So why did he?

As I said, he may simply be a great chief justice, unswayed by politics and guided solely by the law. On the other hand, his motives may be less pure. Maybe he just wanted to cement his place in history. After all, this has been described as a landmark case and the case of the century, so it wouldn’t be surprising that he would want to be the deciding vote and the author of the majority opinion. Of course, he could have gone either way, and both of those things still would have happened, which suggests that he truly does care about the outcome.

While the outcome certainly upholds a liberal law on the surface, I think that there’s more to it than that. For instance, the fact that the majority placed limits on the interpretation of the Commerce Clause is actually a conservative ruling. So Roberts is being true to form there. The limitations on penalties to the states regarding the Medicaid expansion is also a limit to federal power, which is another victory for conservatives. Upholding the law under Congress’ ability to tax and spend may actually have an ulterior motive as well. For starters, had the court struck down the law, the right would have lost one of its key rallying cries in the months leading up to the November election. Instead, the decision has incited further revolt from the far right and the ranks of the Tea Party. People who, for whatever reason, are adamantly opposed to the Affordable Care Act, now see electing Mitt Romney and other conservatives in the House and Senate as the only remaining path to repealing the law. This solidifes the base and the fringe and likely increases voter turnout on the right. At the same time, the left may relax a little in the wake of the ruling, causing support for Obama to slip at the polls.

This scenario is compounded by the fact that the law was upheld under the notion that the penalty for remaining uninsured is to be considered a tax. Conservatives (and, well, most of us) hate taxes, so giving them ammunition in this regard might actually have been Roberts’ way of giving Republicans some good talking point material as the election heats up. It’s also important to note that Roberts writes several times about the role of the court versus the role of Congress, in which he makes clear that he doesn’t necessarily think that the Affordable Care Act is good policy. Instead, he says, that is for the people to decide by voting for their representatives and voting out those who pass policies that the public doesn’t support. That seems to be Roberts’ way of saying “Mitt 2012.” But, like I said at the outset, I’m not a lawyer.


Posted by on July 5, 2012 in Supreme Court


4 responses to “Understanding John Roberts

  1. Joel

    July 5, 2012 at 6:14 pm

    If the “individual mandate” (funny that we’re still calling it that, eh?) penalty tax works exactly as intended, it will collect precisely $0 in tax revenue. Taxes are “exactions” whose main goal is raising revenue, while penalties punish individuals for breaking the law. It’s obviously a penalty and even a brain-dead idiot could point out that this would not be constitutional under the commerce clause. Indeed, for 225 years the court held that it was not.

    Roberts ruled that the mandate was an unconstitutional exercise of federal police powers under the Commerce Clause, only to transform the taxing power into a license for the federal government to impose taxes whose defining feature is commanding people as members of society.

    “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” Pretty clear.This is expressly forbidden in the constitution, which is why Roberts pulled the old switcheroo and claimed “A tax on going without health insurance does not fall within any recognized category of direct tax”. Hogwash. Of course it’s a direct tax.

    This makes it plain that the move was politically motivated (as the decision was just bizarrely ridiculous even to a poor old dumb non-lawyer such as myself), the motives of which are unknown to me. They can’t be good, though. This is judicial activism at its most egregious.

  2. Brad Wright

    July 5, 2012 at 6:42 pm

    Some thoughts: First, you shouldn’t plagiarize people’s ideas. While the “investopedia” link is nice, why not link to the article that you have only mildly reworded here without attribution (

    As to some of your (i.e., the WSJ’s) finer points, a sin tax would also generate precisely $0 in revenue if it worked perfectly, because after all they are imposed to discourage certain purchases. I realize that discouraging a purchase is not the same as encouraging a purchase, but neither is it wholly different. As the decision reads, if one chooses not to get coverage, but pays the tax, they will not be considered to have violated any law. The real wackiness is Mitt Romney, who first came out saying this was not a tax but a penalty, and now says it’s not a penalty but a tax less than a week later. I think he is genuinely confused about what to do since he signed “RomneyCare” into law in MA.

    The sad thing, for those Americans who, like yourself, are strongly opposed to the ACA is that the only two viable candidates for POTUS are on record in support of ACA-style reform—even if one of them is now seemingly determined to repeal and replace it. The problem is, the only viable option for repeal will require Republicans to employ all of the same tactics (e.g., reconciliation) that they sharply criticized the Dems for using a few years ago. The hypocrisy will be wonderful. Of course, when the CBO scores repeal as increasing the deficit, reconciliation will no longer be an option either.

    Common sense should tell folks that the Republicans would much rather have the issue of repealing the ACA to run on for as long as they can, because it motivates their base, than the victory on this, which will just be a huge mess if it manages to happen.

    • Joel

      July 5, 2012 at 7:01 pm

      Sorry, I put that together in a hurry. I should have linked to the original. I couldn’t find the author’s name on

  3. Ian Ryder

    January 28, 2014 at 11:58 pm

    (1) I don’t live in Iowa. I live in Florida. I assure you that in 2000 SCOTUS in 2000 did a better job of upholding the laws of the state of Florida than our own state supreme court.

    (2) The Court did not “[grant] corporations the rights of persons” in the Citizens United case. It upheld the traditional view that citizens retain their constitution rights when in association with other citizens.

    (3) If you really want to insist that Citizens United was wrong, that corporate activity is not protected by the Constitution, then the necessary logical implication is that all corporations can be censored by the federal government, including ABC, NBC, CBS, CNN, and your friends at MSNBC. Also: the New York Times, the Chicago Tribune, The Washington Post, Time, Newsweek, and on and on and on and on for every single news corporation, large and small, right down to blogging sites owned by tiny corporations.

    (4) PPACA is clear overstep of Federal power. The Constitution allows Congress to “regulate Commerce between the several states,” i.e., interstate commerce. By clear implication, it does not permit Congress to regulate intrastate commerce. Federal regulations on intrastate commerce violate the text and history of the Constitution. (By protecting the states from improper meddling in their internal affairs, the Framers sought to protect the power of the people to govern themselves through the state government and protect the people from excessive government control.)

    (5) However, the modern Court has a problem. In 1941, the Supreme Court overturned precedence and common sense, ruling that the Federal government has the authority to regulate intrastate commerce. (U.S. v. Wrightwood) The Court argued that the regulatory power extends to commerce which -affects- interstate commerce. That is, of course, not what the Constitution says, but the Court was filled with FDR appointees who placed their shared agenda above the Constitution. Bastards.

    (6) In 1942, the Supreme Court ruled that the Federal regulations could prohibit a farmer from growing wheat on his own land for his own use. (Wickard v. Filmore) He was using it to feed his cattle. So now non-commercial activity could be regulated if it affected, indirectly and third-hand, interstate commerce. If the Court’s reasoning in Wickard makes sense to you, you should go back on your meds.

    (7) If not for Wickard & Wrightwood, SCOTUS could have upheld the common-sense meaning of the Constitution and struck down PPACA. Unfortunately, Wickard & Wrightwood were the worst kinds of precedent: clearly wrong, but hard to overturn. As a practical matter, reversing Wrightwood would undermine the legal standing of entire government agencies. So the five members of the responsible wing of the Court was in the awkward position of trying to uphold the the Wrightwood precedent while still retaining some place for the Interstate Commerce Clause. (Four Justices on the Supreme Court do not seem interested in preserving the Constitution.)

    (8) The activity-inactivity distinction was one of the few elements of the Interstate Commerce Clause that previous Courts had not explicitly shredded. It became the core legal argument against the individual mandate. Congress had never before compelled people to enter a market, never before forced people to engage in commerce. Therefore, upholding PPACA would serve as a new, additional violation of the Commerce Clause, one not sanctioned by precedent. Therefore, PPACA should have been struck down.

    (9) However, in the months leading up to the Virginia v. Sebelius decision, the elite media conducted a long campaign to “warn” the Court that overturning PPACA would undermine the legitimacy of the Court. As Chief Justice, Roberts was the primary target of this campaign. He was, in effect, threatened with another campaign, a campaign to delegitimize the Roberts Court in public opinion. He caved. (Or so it looks from here.)

    (10) To avoid further damage to the Commerce Clause while still upholding PPACA, it seems that Roberts turned to the taxation power of Congress as a rationale. The problem is that PPACA is not a tax. It imposes a fine on people who violate the individual mandate, but a fine is not a tax. Not in law, at any rate. In economic terms, a fine may function as a tax, but in law the two are quite different things and have quite different implications.

    (11) Never write when angry. This (see above) is what happens.


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