John Roberts, a Conservative Liberals Can LoveNoah Feldman
(Corrects ninth paragraph to reflect that Justices Stephen Breyer and Elena Kagan, not Breyer and Sonia Sotomayor, joined the relevant part of Chief Justice John Roberts’s opinion.)
July 2 (Bloomberg) -- Conservatives hoping to salvage something from the wreckage of the U.S. Supreme Court’s decision upholding the Affordable Care Act have something in common with liberals who want to whip up fear of a conservative Supreme Court in the run-up to the presidential election.
Both sides claim that unheralded parts of Chief Justice John Roberts’s opinion made significantly conservative new law. For conservatives, that means things could have been worse, and that Roberts shouldn’t be shunned. For liberals, it means Roberts’s court can still be condemned as wildly activist, even though it chose not to strike down President Barack Obama’s signature domestic policy accomplishment.
Both versions of this story are what we might call news-cycle revisionism. Roberts’s opinion will not have the dramatic conservative effects that are being claimed for it. In this case, the first headlines were correct: Roberts actually exercised judicial restraint -- and the decision is a victory for anyone who believes that such restraint is a good thing.
The first topic of revisionism is Roberts’s statement that Congress lacked authority to enact the ACA under the Commerce Clause, because the health-care-reform law regulates inaction (failure to buy insurance) rather than action. Roberts, writing only for himself, essentially bought the broccoli argument: If Congress can require you to buy health insurance, what is to stop it from making you buy (and eat) your vegetables?
On the surface, this looks like a win for conservatives and a restriction on Congress’ commerce power. It isn’t. The reason isn’t that the four conservatives, including Justice Anthony Kennedy, deliberately chose not to join Roberts’s opinion (maybe because they were angry at him for breaking ranks). It is that in the real world, as opposed to the realm of legal theory, there is no meaningful difference between action and inaction. In the future, Congress can simply phrase Commerce Clause commands in the affirmative.
Consider the Civil Rights Act: Does it require public businesses to serve customers regardless of race? Or does it prohibit them from refusing to serve customers on the basis of race? See the difference? Oh yes, there isn’t one.
If that weren’t enough, there is also Congress’s power to tax, on which Roberts relied. If Congress wants to penalize you for not doing something in the future, it can impose a tax. And as Roberts’s ACA decision affirmed explicitly, Congress doesn’t even have to call it a tax. In short, in practical terms, Congress has no less power than it had prior to the decision.
We have been down this road of pseudo-limitations on the commerce power before. In the 1990s, the Supreme Court twice struck down laws for exceeding the commerce power, once in the case of the Gun Free School Zones Act and once concerning a provision of the Violence Against Women Act. Constitutional lawyers sweated over whether the extensive commerce power had been meaningfully restrained. In practice, they concluded, it had not. Congress could find ways to do what it needed -- and it still can.
The other revisionist argument concerns the court’s holding that Congress could bribe the states to extend Medicaid to about 16 million previously uninsured persons -- but could not blackmail the states by threatening to withdraw almost all of their existing Medicaid funding if they did not participate in the extension. This part of Roberts’s opinion was joined by Justices Stephen Breyer and Elena Kagan, so it would be surprising if it were radically conservative.
It is true that this part of the ACA ruling marks the first time the court has ever struck down a congressional act that conditioned funding on the states taking some action. In the past, it had upheld a very minor blackmailing provision, in which Congress threatened to take away 5 percent of states’ highway construction funding if they did not make their legal drinking age 21.
As the court noted, the threat in the case of the ACA was far, far greater: Congress must not issue a threat to the states that amounts to what Roberts called “a gun to the head.” This does constitute an outer limit on Congress’s power -- but it is hardly a very important one. It is hard to think of a case where a state could not be bribed rather than blackmailed.
Indeed, many observers think that the states will end up accepting the Medicaid extension without the threat of losing funding -- which would show the threat to have been unnecessary in the first place.
In the real world, then, barring Congress from such an extreme threat will not change the balance of power between the federal government and the states in any fundamental way. The upshot is that nothing terribly conservative happened in the ACA case. The chief justice’s gestures toward conservatism were just that -- symbolic gestures to soften the blow.
The day after the decision was handed down, Roberts joked that he planned to spend some time this summer in Malta, which he called “an impregnable island fortress.” His joke acknowledges the painful reality of a true practitioner of judicial restraint: No one loves you for it. Roberts is still a judicial conservative. Regardless of what he does in the future, his legacy will always include what he did not do when the ACA was on the line.
(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)
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