Obamacare & The Chief Justice: The Would-Be 9-0 Compromise

As Chief Justice John Marshall said in a landmark Supreme Court decision in 1817 . . . The power to tax is the power to destroy.

The National Federation of Independent Business v. Sebelius decision was as unexpected as it was wrong. There was much speculation that Chief Justice John Roberts might join with a liberal majority upholding Obamacare if Justice Anthony Kennedy were to side with the liberal wing of the high court. Nobody anticipated that a Scalia-Alito-Thomas-Kennedy coalition would be cast into the minority by a Roberts defection. While the Court’s decision is cast in stone, the question why will linger well into the future. Many speculate that the Chief Justice switched his vote at the last minute. As the theory goes, indications in both the joint dissenting opinion and Thomas’ special dissent indicate that all of the dissenting justices at one point viewed Ginsburg’s special concurring opinion as a dissent. In addition, Ginsburg’s opinion can be read as if it were originally drafted as in fact a dissent — the majority opinion says nearly exactly the same thing. This evidence, the theorists say, indicates that Roberts was originally with the conservative wing of the Court but unexpectedly switched his vote at the last minute — or at least close enough to the deadline that the other writing justices did not have time to conceal the obvious discrepancies in the language of their own opinions.

There are several problems with this theory. For one, if Roberts were originally voting with the conservative justices, why would another justice be assigned to write the Court’s majority opinion? In other words, wouldn’t Roberts assign himself the task of writing the Court’s majority opinion, assuming that it was clear that the other conservative justices were voting with him? In addition, if Roberts was voting with the conservatives until very late in the term, and only switched at the last minute, it begs the question of how it is possible for he and his clerks to draft such a detailed and lengthy opinion.

I believe there is a more likely answer to this puzzle.

The story goes as follows: at the conference following oral argument, Roberts, instead of leading with his own opinion and vote, abstains and allows the other justices to state their views and cast their votes. Realizing then that he would be the deciding vote, he indicates that his initial inclination is to side with the Scalia-Alito-Thomas-Kennedy coalition. Since he has technically reserved making a final decision, Roberts assigns Kennedy to be the author of what would likely become the majority opinion. Ginsburg assumes the dissenting position. At this point, the infamous vote leak to the White House occurs and President Obama makes his legendary remarks about Supreme Court activism.

While all of the associate justices believe that there will only be two main opinions — and that the conservative wing of the Court has prevailed — Roberts and his staff secretly are authoring a Grand Compromise. Viewing himself as the custodian of the High Court’s honor and reputation, Roberts desired more than anything to achieve a unanimous decision on a case of such magnitude. A narrowly divided Supreme Court which overturned a sitting president’s signature achievement would, from Roberts’ perspective, cause near-irreparable damage to the Court’s reputation in the eyes of the public. But how to bring the two sides of the Court together on such a contentious issue? The answer lies within the Roberts opinion.

On the one hand, the Roberts opinion contains all of the requisite language defining a bright delineating line limiting Congress’ power under the Commerce Clause. This was the key prize for the conservatives on the Court. Although the seemingly unlimited Commerce Clause power had been abrogated in the past two decades, no decision from the Supreme Court had yet defined its limits with specificity. On the other hand, upholding Obamacare as constitutional was the only possible way of earning the votes of the liberal justices. To achieve this end, Roberts ignores the actual language contained in the law and “reads” it as imposing a “tax” in the event a person “chooses” not to insure his or her healthcare needs. However, since it is Roberts’ goal to bring the two sides of the Court together and to obtain a consensus opinion, this strained reading of the Constitution is necessary.

Mere days before the end of the term, Roberts calls a conference among the Court’s justices and announces that despite Kennedy and Ginsburg’s assignments, he has himself authored an opinion. He explains his reasoning to the associate justices and impresses upon them the importance of presenting a unified Court to the outside world. In this role, Roberts views himself as accomplishing what Chief Justice Earl Warren did in 1954 in assembling a 9-0 opinion abolishing school segregation in Brown v. Board of Education. The liberal justices, always willing to bend in the breeze, accept Roberts’ offer and agree to vote in favor of his opinion, giving him the majority. The conservative wing of the Court, however, is unwilling to uphold what they view as a clear and present overreach of the federal government.

Under this scenario, mere days before the end of the term, what should have become the Court’s majority opinion is cast into the dissent, and Roberts’ attempt at consolidating the Court under one compromise opinion becomes an epic fail. The result is that the Court remains narrowly divided, except that the man who should have been the Constitution’s savior in fact has become its assassin. Chief Justice John Roberts, a man who fundamentally very deeply believes in strict construction of the Constitution, surrendered his honor when he tried to play politics and failed.

In his writing, Roberts opines that “[i]t is not our job to protect the people from the consequences of their political choices.” With all due respect, Mr. Chief Justice, it is absolutely your job to protect the people, who entered into the social compact we call our Constitution, from the encroachments of the power hungry elected elites. Despite the siren’s call of the ignorant, judges are charged with deciding cases based on the law, and only the law. If it isn’t the Supreme Court’s role to declare unconstitutional laws to be what they in fact are, then whose job is it? It is patently frivolous to believe that a fine levied against someone for failing to comply with a mandate to engage in commerce is the equivalent of a tax. As others have pointed out, if Congress can enforce unlimited mandates by taxing the people who refuse to comply, Roberts has just granted Congress a general police power.

Roberts has apparently forgotten a very early but very famous Supreme Court decision, one that is taught in every first year law student’s constitutional law class. In 1817, the Supreme Court considered whether the state of Maryland had the authority to impose a tax on all notes of banks not chartered in Maryland, thereby impeding the operation of a branch of the Second Bank of the United States, which was a congressionally-chartered bank. In the landmark case of McCulloch v. Maryland, Chief Justice John Marshall famously wrote:

That the power of taxing it [the bank] by the States may be exercised so as to destroy it, is too obvious to be denied, and that the power to tax involves the power to destroy [is] not to be denied.

The power to tax is the power to destroy. So where have you left us now, Mr. Chief Justice?