Chief Justice Roberts Avoids Ignominy

By voting to uphold the Patient Protection and Affordable Care Act (a.k.a. Obamacare), Chief Justice Roberts avoids ignominy and perhaps even infamy. He avoids the fate of his predecessors on the bench by learning from history rather than repeating it.

Last Thursday the Supreme Court issued a landmark decision upholding the Affordable Care Act. What caught almost everyone by surprise was staunch conservative Chief Justice Roberts voting in support of the Act. A careful review of the slip opinions reveals a curious anomaly that may provide some insight into the chief justice's surprising decision.

Justice Scalia's dissenting opinion, which was joined by Justice Kennedy, the well-known swing vote on the Court (who just days before joined the liberal bloc to strike down most of the Arizona immigration law and to prohibit life terms for juveniles), featured some curious phrasing that will undoubtedly be edited out of the published opinion.

In particular, in Part I(C), Scalia repeatedly refers to Justice Ginsburg (who authored a concurring opinion in part and joined Chief Justice Robert's opinion in part) as "the dissent." This is bizarre phrasing since it was his opinion that constituted "the dissent," not Justice Ginsburg's.

The most plausible explanation is that Justice Scalia's opinion was initially written as the opinion of the Court. Additional anecdotal evidence supports this conclusion. This means that it is likely that the chief justice switched his vote late in the process, after the initial draft opinions has been written. Not only is this uncharacteristic of the chief justice, a man who once claimed that interpreting the Constitution was akin to calling balls and strikes, but I believe it reflects a careful and unexpected historical and political sensitivity to avoid the fate of his predecessors.

There is perhaps no more reviled case in American constitutional history than the infamous Dred Scott decision. While most high school students are taught the essence of the case, very few law students or even lawyers have read it, much less the political and legal history behind it. While the principal ruling -- that persons of African descent were not and could never become citizens of the United States -- is universally despised, what is less well known is the other key holding of the Court and the impetus for the decision.

In addition to the citizenship holding, the Dred Scott decision marked only the second time that the Supreme Court overturned a major congressional act. At issue was the Missouri Compromise, a carefully rendered arrangement that had the effect of limiting the extension of slavery in the western territories. By holding the Missouri Compromise unconstitutional, the Court opened the door to slavery in the northern territories and potentially even in northern states (as congressmen like Abraham Lincoln warned).

Chief Justice Taney sought to intercede in a debate that had lasted for more than a generation. He had hoped to resolve the issue of slavery once and for all by bringing to bear the institutional authority of the Court, which he naively hoped the nation would embrace. On the contrary, his broad and radical decision became one of the initial causes of the Civil War, and was a principal point of debate in the elections of 1858 and 1860. It was a decision that, in the words of Rep. Thaddeus Stevens, "damned the late Chief Justice [Taney] to everlasting fame; and, I fear, to everlasting fire."

During our nation's next major crisis, the Depression, the Supreme Court repeatedly struck down legislation designed to regulate economic activity and improve economic conditions under the auspices of the New Deal. This so infuriated the public and the Roosevelt administration that FDR proposed a 'court packing plan' that would have allowed the president to appoint additional Justices to the Court. Not coincidentally, Justice Owen Roberts switched his vote in 1937 to uphold a minimum wage law in Washington State. This is known as "the switch in time that saved nine," but also helped to preserve the institutional legitimacy of the Court.

Chief Justice Roberts' last minute change of heart may not reflect his asserted view of the law as deterministic rather than ambiguous, but it does reflect a conscientious regard for the Court's position in American society. He has appropriately left this matter for the political branches to resolve rather than use the power of the Court to resolve it for them. In doing so, he has not only preserved the legitimacy of the Court for this generation, especially in an era when so few Americans have faith in any institution, but has preserved his own legacy -- for now -- against history's judgment as well.