Thursday, May 30, 2019

Ideology, Not Politics, Is What Makes John Roberts Run -- Part One

Guest Blogger

Simon Lazarus

Earlier this Spring, on Balkinization, Mark Tushnet and Neil Siegel took issue with Joan Biskupic’s assertion, in her recent biography of Chief Justice John Roberts, The Chief, that Roberts “acted more like a politician” than a judge in his epochal 2012 constitutional rulings on the Affordable Care Act in NFIB v. Sebelius. They wrote that Biskupic’s inside account of the Court’s post-argument opinion-drafting does not demonstrate that the Chief Justice was motivated by anything other than what he “thought the best view of what the law required” (Tushnet), and, indeed, that his upholding the ACA “individual mandate” as a tax was “right on the law” (Siegel).
Tushnet and Siegel are right. Indeed, their case is stronger than their posts indicate.  And the issue of Roberts’ motivation matters, for assessing his record to date, and for gauging – and working to influence – his likely approaches to the Trump-provoked constitutional crises of first impression now looming before his Court.
Prior developments in NFIB, at the appellate level and during the Supreme Court’s oral argument, which I detailed soon after the case came down, provide affirmative support for the Tushnet-Siegel perspective. Three years later, when, in King v. Burwell, Roberts rejected the second existential challenge to the ACA, his opinion for the Court confirmed that his approach to the ACA in both cases was driven by strong ideological considerations – but ideological in a sense neither “political” nor its more decorous equivalent, “institutional.”  Further, Roberts’ handling of the ACA was consistent with conscientious interpretation of relevant law, and, importantly, with distinctly conservative jurisprudential and policy precepts.
Overall, Biskupic’s crisp biography lives up to its uniformly positive reviews. But her bottom-line on Roberts’ modus operandi – which had already hardened into conventional wisdom before she wrote – perpetuates a meme which is inaccurate, misleading, and actually dangerous.

Roberts’ jurisprudence, so goes this refrain, boils down to two dueling impulses. He is, on the one hand, deeply “conservative,” but, on the other hand, responsive to an “institutional” concern, to keep the Court from appearing partisan or “political.” This latter anxiety, from time to time, leads him to override his conservative ideological and legal principles.
Biskupic derives her embrace of this binary – some conservatives might say “Manichaean” – construct, from Roberts’ NFIB decision to validate the ACA’s individual mandate as a tax. She claims to have “revealed . .. this episode . . . in full for the first time,” largely through interviews with her subject and his colleagues. This revelation, she states, “forms a central part of [the] book exploring [Roberts’] work and motivation.” But Biskupic’s picture of where Roberts was coming from in NFIB is incomplete, and her resulting overall take does not match the record of his work nor persuasively account for the motivations behind it.
In fact, in big cases – very much including challenges to the ACA – Roberts has stayed tightly tethered to his own ideological lodestars, rarely, if ever, willing to trim sails to weather external political headwinds, nor to forge internal consensus within the Court.

Almost always, Roberts’ views match dominant conservative nostrums. On rare occasions, he has embraced views which reflect a brand of conservatism different from current conservative ideological and, especially, political agendas.  But in nearly all cases, his yen for imprinting his own ideological and doctrinal stamp is visibly in the forefront.  That imperative, not political strategizing, drove his rejection of the 2012 constitutional attacks on Obamacare. (My distinction between “ideological” and “political” closely resembles the distinction, drawn in 2001 by Jack Balkin and Sandy Levinson, between “high politics” and “low politics.”)

As I wrote at the time, the Chief Justice’s tax argument upholding the individual mandate, rather than a spur-of-the-moment improvisation, was foreshadowed by two prominent conservative appellate judges who had ruled on ACA challenges the previous year.
In 2011, Sixth Circuit Judge Jeffrey Sutton (during oral argument) and then-D.C. Circuit Judge Brett Kavanaugh (in oral argument and in an elaborate separate opinion) had each recognized that the so-called individual mandate didn’t actually “force” individuals “to do anything,” but instead prescribed an option – buy insurance or pay a penalty.
In his decision, Sutton held that the Commerce Clause justified the ACA’s “shared responsibility payment,” and rejected the tax justification.  Kavanaugh, however, concluded that Obama Solicitor General Donald Verrilli was on solid ground defending the provision as “a routine tax incentive.”

Further, Kavanaugh elaborated why the ACA’s incentive-driven exchange mechanism was sound social policy. He observed that the ACA could be “the leading edge of a shift” to “privatize the social safety net and government assistance programs” (presumably having in mind major initiatives of the George W. Bush White House, in which Kavanaugh was a prominent staffer – the Medicare prescription drug benefit, enacted in 2003, and the partial privatization of social security, proposed in 2006 but not enacted). Finally, Kavanaugh contended that a spur for individuals to purchase insurance, while necessary to sustain safety net schemes like the ACA, was preferable in the form of a tax incentive rather than a rigid mandate, because it would be a lesser threat to individual autonomy.

Several months later, Chief Justice Roberts’ decision for the Supreme Court restated every element of Kavanaugh’s singular approach, which Verrilli had highlighted in his brief and his oral argument.

“Under the mandate,” Roberts stressed in his opinion, “if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes.”  This, he wrote, means that “the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income,” citing Verrilli’s assurances that individuals who forego insurance but pay the “tax penalty” have “fully complied with the law.”  Most revealing, the Chief Justice endorsed Judge Kavanaugh’s jurisprudential policy argument that “The taxing power does not give Congress the same degree of control over individual behavior” that the commerce power does.

Three years later, in King v. Burwell, Roberts confirmed the suggestions in his 2012 decision that he viewed the ACA as exemplifying a species of social policy which he regarded as ideologically congenial as well as legally valid.

In King v. Burwell, for a 6-3 majority, Roberts rejected ACA opponents’ claim that a four-word statutory phrase barred tax credit premium subsidies on state-level exchange marketplaces run by the federal government’s website, He began his argument by reciting how “a long history of failed insurance reform” in the states demonstrated that each of three “interlocking” reform components was essential to avoid repeating that failure. Noting that the only state program to include all three reforms, Massachusetts’ 2006 law, reduced the “uninsured rate in Massachusetts to 2.6%, by far the lowest in the Nation,” he observed that the ACA “adopts a version of the three key reforms that made the Massachusetts system successful” (emphasis added). His final rebuff of the challengers hinged on his conclusion that their position would defeat this experience-validated “plan . . . because it would destabilize the individual insurance market . . . and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”

These and other favorable references, especially his concluding zinger -- “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” – strongly suggest an affinity – as a matter of social policy and of constitutional validity –  for the play-or-pay template that the ACA fit, or, as critics fumed, into which he fit the ACA.
Further, Roberts’ King v. Burwell opinion advanced an ancillary personal ideological agenda. As Abbe Gluck has explained, Roberts used the case to write a “game-changing statutory interpretation opinion.”  Pushing back against the blinkered, a-contextual brand of “textualism” often deployed by Justice Scalia and other self-styled conservative “textualists,” Roberts pronounced: “A fair reading of legislation demands a fair understanding of the legislative plan.”  (emphasis added) Because of this underlying “plan,” Roberts said, “It is implausible that Congress meant the Act to operate” with no tax credits available in states that opted to let the federal government operate their exchanges.

Importantly, in these two blockbuster cases, Roberts cast his support for incentive-driven federal safety net programs, and for a contextual, operational mode of interpreting statutory text, as more faithfully conservative than the theories brandished by his anti-ACA adversaries.  In addition to detailing applicable judicial precedent and statutory provisions, he stressed that his approaches served longstanding conservative goals of individual autonomy and judicial accommodation of democratically made policy choices, to “respect the role of the Legislature, and take care not to undo what it has done.”  Indeed, before political conservatives made it their top priority to undo what a Democratic Congress and president had done in enacting the ACA, Roberts’ approach would have comfortably fit mainstream conservative policy and legal catechisms.

Finally, there was a third, little-noticed, facet of Roberts’ King v. Burwell decision, which he could have regarded as both consequential and more in line with emerging conservative priorities than the position of his colleague Justice Scalia. After finding “ambiguous” the four-word phrase on which ACA opponents hung their case, Roberts pointedly declined to apply the long-standing Chevron rule to defer to the Obama administration’s plainly reasonable interpretation.  Instead, he said, the Court must itself decide what the law means, on the ground—never before asserted so categorically—that the availability of nationwide ACA tax credits is “a question of deep economic and political significance that is central to this statutory scheme.” He then held that the administration’s interpretation was, after all, the right call. Administrative law experts were quick to note that, in the words of Chris Walker, “King v. Burwell—while a critical win for the Obama Administration—is a judicial power grab over the Executive in the modern administrative state.”

 *   *   *

In the concluding installment of this essay, I’ll explain why accurately labeling the motivation behind Chief Justice Roberts’ NFIB decision matters – for clarifying the legitimacy of that decision and the law it largely upheld, for spotlighting the radical revamp of conservative ideology and politics that Roberts rejected and the dissent embraced, and for projecting, and seeking to influence, Roberts’ – likely decisive -- response to the proliferating court challenges to President Trump’s overreach and evasion of accountability.

Simon Lazarus is a lawyer and contributor to legal and opinion blogs and journals. He served as Associate Director of President Jimmy Carter’s White House Domestic Policy Staff, and since then with private and public interest law firms in Washington, DC. His email address is

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