Simon Lazarus

In my previous blog post, I explained why Chief Justice Roberts’ 2012 decision in NFIB v. Sebelius, to uphold the ACA “individual mandate” as a tax, was motivated by ideological and/or legal convictions, rather than by “institutional,” i.e., political, considerations that moved him to subordinate such convictions.  In this blog post, I explain why this matters.

First, setting the record straight on NFIB is important to counter a campaign on the right to delegitimize the result in that case, thereby clouding the legality and legitimacy of the ACA itself.  As I wrote when the decision came down, the campaign started that instant.  “The fact that this decision was apparently political, rather than legal, completely undermines its legitimacy as a precedent,” vented Randy Barnett, counsel for the Republican state officials who brought the case.  The attack on Roberts’ bona fides was aided and abetted by a bipartisan chorus.  Both sides of the political spectrum agreed that, to defuse a political crisis, the Chief “rewrote” the text of the ACA (per the bitter dissent by his four conservative colleagues), “contorted logic and reason” (per then presumptive Vice Presidential nominee, Paul Ryan), and either “betrayed” conservatives (National Review’s Thomas Sowell) or, in a more generous interpretation, displayed “statesmanship” (The New York Times’ Thomas Friedman).

ACA opponents have kept Barnett’s sour grapes disparagement alive.  When Biskupic asserts that Roberts’ opinion was “incoherent” legally, and that he acted more like a politician than a judge, she is simply reiterating what has been widely accepted as fact.  Though the law has survived innumerable attempts at repeal and administrative sabotage, its intransigent foes, prominently including the Trump administration, are still out to kill it in the courts, and the residual skepticism seeded by the misbegotten-birth narrative could help legitimate their aspiration that, this third, legally absurd, attempt might just succeed.  And, after all, with more Trump Supreme Court appointments, it could.

Buying into ACA opponents’ mislabel of Roberts’ NFIB v. Sebelius decision does not merely serve their aim of delegitimizing that decision and the law it largely upheld.  A second bit of mischief is that widespread diffusion of that canard deflects attention from the genuinely extreme claims that Roberts broke conservative ranks to reject. Trivializing his decision as “political” implicitly treats the dissent as a non-noteworthy retread of familiar “conservative” positions.  This assumption misses the newly radicalized agenda for the Supreme Court and the federal judiciary evident throughout the four dissenters’ reasoning and rhetoric, in the magnitude of the socially destructive result they bent the law to reach, and in the demonization of Roberts that swept the political right for his daring to stand in their way.

The agenda illumined in the NFIB dissent shelves bedrock principles that, for decades, had defined the canon embraced by legal conservatives – judicial restraint, modesty, and originalist and textualist methodologies as devices to respect democratically made policy choices embedded in constitutional and statutory provisions.  The dissenters’ dispatch of two century-old severability constraints on judicial power, booststrapping novel alleged constitutional defects in individual provisions as excuses to scrap the entire law, signaled a readiness to dismantle major regulatory and safety net enactments, and ad-lib sweeping doctrinal changes to further that impulse.  For decades, the prophets of modern judicial conservatism – Robert Bork, Antonin Scalia, Edwin Meese, and, more recently, Roberts -- joined progressives in condemning the brand of activism associated with the early 20^th century Lochner Era, when Supreme Court majorities invented ideologically rooted constitutional theories to block progressive reform legislation.  The NFIB dissent marked a radical rightward shift in conservative jurisprudential ideology – embrace of libertarians’ rollback agenda. Mainstream reactions to the case, even on the left, did not, and do not, sufficiently spotlight that U-turn, nor its implication – that no major social or economic reforms enacted by a future Democratic Congress, nor, indeed, major reforms upheld decades ago, will be safe from Supreme Court majorities obeisant to that agenda.

Roberts has not signed on to that volte face, at least not overtly or reliably.  Apart from his ACA decisions, in his dissent in Obergefell v. Hodges, he excoriated at length the Lochner decision itself, its activist embrace of “courts . . . substitut[ing] their social and economic beliefs for the judgment of legislative bodies . . . ,” and the decades of “discredited” Lochner Era decisions striking down “over 200 laws.”

Apart from this activist mutation in conservative constitutional ideology, the NFIB dissent marks another, even more consequential tectonic shift: formal acceptance, at the highest level, of a hard understanding that, to be counted as a member in good standing of the current conservative elite legal guild, a judge must be ready to twist the law to further nakedly political priorities and interests of conservatives, i.e., of Republicans.  That is the unambiguous message of the ferocious reaction on the right to Roberts’ decision – disingenuously mischaracterizing and seeking to delegitimate his opinion, excoriating him for “betrayal,” equating him with former center-left Justice David Souter, and generally purporting to excommunicate him from the inner sanctum of “constitutional” – i.e., tribal – conservatives.

Never mind that, from his first decisions on the Court, virtually every one of Roberts’ votes and opinions in major cases aligned with the ideological and political agendas of the hard right; in 5-4 liberal/ conservative split decisions, he nearly always joined the conservative bloc.  In NFIB itself, Roberts blessed, indeed, eloquently expounded the three transformational changes in constitutional constraints on federal power that the challengers (and the ever more right-leaning conservative legal movement) sought in the case.–

In terms of furtherance of conservatives’ ideological agenda for constitutional jurisprudence, John Roberts’ NFIB opinion was an historic, landmark accomplishment. If ideological fidelity were the driver of conservatives’ take on the case, he would have been lionized.  But the goal of the Republican politicians who brought the case was flat-out erasure of a despised Democratic president’s signature legislative accomplishment in an election year. For dashing that crudely political hope, Roberts had to be demonized.

The message is crystal-clear: if you want to be named to the federal judiciary by a Republican president, or supported by Senate Republicans, or, once on the bench, you want tribal approbation, you had best demonstrate fealty to the tribe’s political priorities, not merely to conservative ideological or jurisprudential precepts, let alone established legal, ethical, or other professional standards.

Until now, the question whether Chief Justice Roberts is primarily “ideological” or “political” has been of scant practical import.  Through the first dozen years of his tenure, his outcomes would have been the same regardless of which label best matched his actual motivation, on almost every major front – abortion, affirmative action, campaign finance, minority voting rights, political gerrymandering, gender equality, business regulation, and consumer, worker, and health, safety, and environmental protection.

Donald Trump’s presidency has sundered that coincidence of principle and politics. The issues now dominating the nation’s attention have moved the Court into uncharted territory, where pet conservative – and for that matter, pet liberal -- jurisprudential axioms offer little or no guidance. Imminently, in the thickening avalanche of cases triggered by a White House heedless of internal check and contemptuous of both, supposedly co-equal branches, Roberts and his colleagues will be forced to interpret the Court’s role in enforcing constitutional constraints on presidential power till now rarely or ever contested.

We have not seen this movie before, but we have seen one quite like it. Bearing in mind the Watergate precedent, court-watchers, especially on the left, tend to frame the question facing Roberts in simple terms: will he bring to Trump overreach controversies the Burger Court’s forthright 1974 posture, when, in United States v. Nixon, it thwarted Republican Richard Nixon’s authoritarian ambitions, by ordering surrender of his subpoenaed tape recordings?  Roberts’ record indicates that, relying on a supposed “institutional,” -- i.e., cautious for “political” reasons -- side of his approach to his job, is a demonstrably weak reed for expecting, or advocating, that Roberts and his Court stand up as the Burger Court did a half-century ago.

To be sure, as noted by Biskupic and many others, Roberts has, from his confirmation hearings and in public utterances and, on occasion, in judicial opinions, voiced concern that the Court not be infected by the polarization poisoning the nation’s politics. But, despite his readiness to talk the talk of keeping the Court non-political, despite NFIB v. Sebelius and King v. Burwell, he has, in his actual decisions, proven disinclined to walk that walk. Once confirmed, he showed an out-of-the-blocks penchant for conservative ideological purity, even in dissent, rather than the institutional goal of facilitating consensus professed in his confirmation hearing. Over the course of his tenure, the pattern he has engineered, and the priority that reflects, has been to push doctrinal and even procedural envelopes to achieve major, often genuinely radical change, via partisan 5-4 splits in substantially every precedent-upending case.

There is no doubt that Roberts does care acutely about the Court’s stature and its power. And he is surely capable of cold-blooded strategic calculation, as in his judges-are-mere-umpires misdirection maneuvering before the Senate Judiciary Committee in 2005.  But, once confirmed, insofar as such institutional concern has entered into his calculus, he evidently concluded that he can achieve his transparent priority -- polarizing legal changes, with transformational societal consequences – and also fiercely resist powerful but, to him and his allies, unwelcome, new trends in social mores -- without significant or long-term damage to the Court.

Roberts has never shown any sign of succumbing to the dreaded “Greenhouse effect” ascribed by conservatives to other errant Republican appointees  – supposedly drifting leftward to garner favorable coverage by liberal-leaning pundits like former New York Times’ Linda Greenhouse.  Pre-confirmation, the institutionalist profile he cultivated won approval from moderate and even liberal court-watchers, including Greenhouse, who in 2005 saw Roberts as "someone deeply anchored in the trajectory of modern constitutional law, not . . . called to a mission to change the status quo . . . [who] finds himself comfortably in the middle rather than at the margin."  But eight years later, in 2013, Greenhouse decried “the real John Roberts,” for his ”sweeping disregard of history, precedent and constitutional text . . .  startling for its naked political activism.”  Indeed, in at least some cases and on some issues where raw political interests of conservatives – i.e., Republicans – are at stake (for example, Shelby County v. Holder, Arizona Free Enterprise Club v. Bennett, McCutcheon v. FEC, Janus v. AFCSME, Epic Systems v. Lewis), he has so drastically reshaped long-established constitutional law and twisted the terms of relevant statutes, that it is hard to believe that he feels obliged to keep to the non-political straight and narrow, where partisan advantage matches his understanding of conservative ideological dictates.

What NFIB and King v. Burwell do demonstrate is that, when conservative, i.e., Republican partisan priorities clash with his own ideological precepts, he goes – unhesitatingly – with the latter.  Although rare, other such collisions have occurred.  In 2014, for example, in a largely unnoticed matter, Bond v. United States, which George Will uniquely spotted as the “most momentous case” of that Supreme Court term, Roberts scotched a tea party-resonant effort to exhume and, in effect, judicially enact the substance of the McCarthy era proposed isolationist “Bricker Amendment” to the Constitution, that would have crippled the federal government’s authority to enter into international treaties affecting any domestic activities, such as air pollution standards, chemical weapons manufacture or distribution, or open and competitive markets. In Bond, Justice Kennedy joined Roberts’ opinion reaffirming a landmark 1920 precedent by Justice Oliver Wendell Holmes, that has since underpinned the government’s broad authority to negotiate international agreements, but the remaining three conservative justices – Scalia, Thomas, and Alito – would have effectively overturned that landmark precedent. In a similar vein, in 2012, days before his first ACA-saving decision, Roberts joined, without comment, a Kennedy opinion for the same 6-3 majority, that struck down  most of a notoriously draconian Arizona set of restrictions on immigrants. The opinion emphatically affirmed Washington’s “broad, undoubted power over the subject of immigration . . . .”  The rift between the Court majority and conservative political priorities was reflected in Justice Scalia’s incendiary, Trump-foreshadowing dissent, which incanted that “[Arizona’s] citizens feel themselves under siege by … illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. . . .”  and gratuitously attacked Obama immigration initiatives not at issue in the case itself.

So, If ideology, not political concerns, will drive Roberts’ response to Trump authoritarian flirtations, what does his record indicate about what those ideological drivers are and where they point?  Detailed examination of the current cases or pertinent facets of Roberts’ record is beyond the scope of this post. No doubt, many worthy such prognostications will soon appear.  But I will offer three observations.

First, the record doesn’t tell us much. Tea leaves are sparse and largely inapposite to the claims on or nearing the Court’s docket.

Second, at least for some of the impending issues and cases, the Burger Court’s response to Watergate may not be the most useful reference point.  Although Roberts has on significant, if few, occasions, bucked current conservative ideological and/or political priorities, he probably shares with most conservatives a pro-executive tilt. Such a tilt was already in fashion during the Reagan administration, when Roberts’ views were first shaped and exposed. Moreover, like many White House alumni, Roberts surely has internalized a sympathetic grasp of the practical exigencies besetting presidents and their staffs.  Such a perspective would likely make the intrusion of litigation into presidential decision-making appear more problematic than to lawyers lacking that background – such as the justices who, in Clinton v. Jones, saw no impediment to the exercise of presidential responsibilities in subjecting sitting presidents to civil lawsuits during their White House term. 

Third, though good reasons exist for inferring a general pro-presidential tilt on Roberts’ part, his record does not tell much about precisely how far he will lean toward favoring the specific claims this White House is asserting in individual impending cases, nor, especially, toward its increasingly absolutist denials of accountability to Congress, as well as Roberts’ own judiciary. 

To be sure, on important occasions, Roberts has ruled against high profile challenges to presidential abuses. But in my view, these are inconclusive – including the first challenge to alleged Trump abuses to reach the Court, the 2018  “travel ban” decision in Trump v. Hawaii. Roberts’ opinion for a 5-4 majority held that the Court could not overturn a facially valid Department of Homeland Security proclamation, on the basis of overtly anti-Muslim statements by Trump, during his 2016 campaign and while in office. While seeming to offer an implicit acknowledgement of Hawaii’s claim that “this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition,” Roberts declined to give those words decisional weight.  He countered that, “the issue before us is not whether to denounce the statements  . . . “[W]e must consider not only the statements of a particular President, but also the authority of the Presidency itself.”  Especially given the breathtakingly vast discretion handed the President under the Immigration and Nationality Act (in this case, especially 8 U.S.C. §1182(f)), there is reason to take Roberts at his word.

In other significant tests, Roberts arguably evinced a president-centric vision – for example, Free Enterprise Fund v. PCAOB (2010) (two-level for-cause removal protections violates president’s constitutional assignment to faithfully execute the laws); Boumedienne v. Bush (2008) (Dissent from 6-3 ruling that Guantanamo detainees have constitutional habeas corpus right, for which 2005 federal statute provided an inadequate substitute); Hamdan v. Rumsfeld (2005) (DC Circuit) (Roberts evidently joined, or did not dispute, a ruling, reversed by the Supreme Court, that Guantanamo detainees’ status could lawfully be resolved by DOD-established military commissions) (The case was argued before Roberts was nominated for the Supreme Court, but decided shortly after that).  But none of these cases seem especially pertinent to the challenges to Trump heading toward the Court.

In particular, such pro-presidency rulings leave open the question how Roberts will handle clashes over Congressional subpoenas to the White House, where Congress’s core constitutional legislative and oversight authorities – hence, its constitutional role as a meaningful check on executive abuse – are plainly at stake. To begin with, in such cases, it seems, given his attachment to the stature of his Court, Roberts could be loath to question key framework rulings of the Burger Court in United States v. Nixon -- in particular, that, while the doctrine of executive privilege respecting internal presidential communications is valid and constitutionally based, its scope is limited, its application in individual cases must be balanced against specific claims of need for access, and final authority for resolving such claims rests with the Judiciary, not the Executive branch. And he could well see Trump’s diatribes against the role of the judiciary, and his Justice Department’s assertions of near-total de facto immunity from accountability to the courts, as a provocation he cannot, or should not duck. 

More specifically, it would seem especially problematic for the Chief Justice to deny enforcement of demands for material, from the Mueller probe or otherwise, pertinent to Congress’ counter-intelligence oversight.and legislative responsibilities.  That, of course, is precisely what the pending House Intelligence Committee subpoena, with bipartisan signatories, are credibly seeking.  Indeed, Attorney General Barr seems to have recognized the high risk of court rebuff, even from executive-friendly conservative judges, by dropping his initial blanket stonewall of the Intelligence Committee subpoena.  And information needs of the House Judiciary Committee and the Oversight and Government Reform Committee also plainly fall within Congress’ oversight and legislative authority; well-tailored specifications will be difficult for any court to deny, if those executive-legislative bouts are not settled, as they have been, almost invariably, for decades.  Moreover, evidence of Trump’s potential criminal culpability, standing alone, is obviously pertinent to the House’s impeachment authority.  And, without initiating formal impeachment proceedings, the House could assert that authority, to enable it to determine whether to put the government and the nation through the massive distraction of such proceedings.  Despite any pro-executive leanings Chief Justice Roberts could well have difficulty blocking such a demand.   

Finally, Roberts’ record provides good reasons to expect that he would seriously consider one or more of the cases now in the lower federal courts alleging flagrant administrative sabotage of the Affordable Care Act.  Such a case could, to the administration’s detriment, trigger the one-two punch set up in King v. Burwell – no Chevron deference to the executive agency, and holistic interpretation of the statute by the Court, specifically, the ACA, in line with a legislative plan to “improve health insurance markets, not to destroy them.”  If, in such a case, constitutional questions were reached about the President’s “faithful execution” responsibilities, there is nothing in Roberts’ record that indicates he would shy away from clarifying, in principle, that the framers included, and judges need to respect, both of those things – “faithful” as well as “execution.”.

Donald Trump is confident that he can trust “my judges” to shield, across the board, his multi-front drive to extirpate checks on presidential power long taken for granted.  Will Trump’s cynicism prove correct – as it has so far with respect to Republican politicians?  The record indicates that answers to that question could well boil down to the position of one man – the Chief Justice. Beyond that, the one thing the record shows is that Roberts’ answers will turn, case by case, on where he is led by his own ideological and jurisprudential lights, not by some caution-inducing political calculation.

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 Simonlaz@comcast.net.