By Mike Dorf
When I was a law clerk for Justice Kennedy during the 1991-92 Term, I witnessed a substantial number of very fine oral arguments. During that time, no advocate shone brighter than John Roberts, then at the Solicitor General's office. He was particularly strong in an ideologically charged case involving the question whether laws restricting abortion were laws that discriminated against women. Why? Because he managed to make an argument for a very conservative result (favored by the Bush I Administration) in non-ideological terms. Roberts impressed me as extremely smart and not an ideologue. When President Bush II nominated him to the Court I was pleased. I knew Roberts was not a liberal by any stretch of the imagination, but I expected him to be a thoughtful conservative.
Others who knew Roberts better than I did were less certain. My then-colleague Tom Merrill had worked with Roberts in government and recalled that the one thing one could say for certain about Roberts was that he never expressed his own opinion. This struck some people as the sort of caution that one who is "playing possum" might exhibit. Perhaps Roberts was a deeply conservative ideologue who was hiding his real views so that he would maintain his confirmability one day. One could find some evidence for that reading in the publicly released memos he wrote as a law clerk and as a young lawyer in the Reagan Administration. And certainly many of his votes as Chief Justice would give one reason to think that he remained deeply conservative.
But through it all, it turns out, John Roberts remained a lawyer at heart, and a pragmatic one. I haven't yet read the full opinion, but the very fact that he sustained the Act as a tax shows that he has a deeply anti-formalist streak. That was apparent during the oral arguments, when he, more than anyone, expressed puzzlement over how one could even say that the law contained a "mandate" when its only enforcement mechanism was tax liability for some and nothing for others. And in the end, it turns out that was enough for him.
I am sure that there will be much speculation about whether Roberts voted as he did to preserve his legacy or to prevent the Court from being perceived as a purely political institution, but I don't buy it. If the Chief had gone the other way, all of the attention/blame for the result would have focused on Justice Kennedy. Moreover, although the Chief cares about the legitimacy of the Court, it's easy for liberals like me and most of my readers to forget that, given the unpopularity of the mandate, a decision the other way would not have much damaged the Court's legitimacy. I think that CJ Roberts was simply led by the ineluctable logic of the anti-formalist argument that labels don't matter.
I have been saying some variation of the following since the oral argument: "When I started as a constitutional lawyer, I was about 70% legal realist. I thought that in the ideologically identifiable cases in the Supreme Court, law accounted for roughly 30% of the outcomes one saw. After Bush v. Gore, I was at 99-1. That last one percent is on the line in the ACA case." Now thanks to John Roberts, I'm back to 30%.