What Should Movement Conservatives Have Wanted Chief Justice Roberts to Do?

-- Posted by Neil H. Buchanan

My written commentary on the ACA decision to this point has focused almost exclusively on the issues raised in the various opinions in the case: the form-versus-substance aspects of the taxing power (here), the dissenters' concession that Congress has the power to do what it did in the ACA case (here), and the extremely forgiving definition of "coercion" that the majority used in striking down the Medicaid expansion (Verdict column here, Dorf on Law post here). I have not, however, commented on the pivotal role that Chief Justice Roberts played in the outcome of the case.

There has been some extremely good analysis of Roberts's unexpected and historic role. Professor Colb (Verdict column here, Dorf on Law post here) discussed (among other important points) coercion in a different context -- the four dissenters' apparent attempt to put pressure on the Chief Justice to play on their team. Professor Dorf lauded Roberts for breathing new life into the fading hope that judicial decision-making is driven by substance and not politics. John Dean, our colleague on Verdict, wrote in a similar vein that the ACA decision showed that Roberts was willing to "call balls and strikes" as the neutral arbiter he claimed that he would be during his Senate confirmation hearings.

Here, I want to consider the pure politics of the choices that the Chief Justice faced. I do this not because I necessarily consider Dorf or Dean to be on the wrong track. Indeed, they both make a good case that principles triumphed in the ACA case. And I have no reason to disagree with Colb's analysis of the internal personal struggles that might have played out during the case.

I do, however, want to work from the well-known premise that underlies analyses like Professor Colb's: John Roberts is a "movement conservative," put on the court by the Bush/Cheney administration because they expected him to be a reliable arch-conservative, forming a bloc with Justices Scalia and Thomas (later to be joined by Alito), and putting Justice Kennedy (a not-quite-as-arch-conservative) in the swing role. The disappointment with Roberts among committed movement conservatives, both on and off the Court, is based on the belief that his decision harmed the cause. Did it?

I will assume for purposes of this argument that movement conservatives either do not care about the legal merits of a case, or that they believe that the legal merits of every case will always require an outcome that is amenable to their political goals. (See, e.g., abortion, affirmative action.) More to the point, I assume that the conservative movement sees the judiciary in purely instrumental terms, as another part of the game of politics, to be played as a means to a substantive end.

Chief Justice Roberts, under one view, decided that it was important to protect the reputation of the Supreme Court (and, perhaps, to establish his own reputation and legacy). He thus decided that it would simply be too damaging to the Court's credibility if there were a straight Republican/Democratic split on the Court, when confronted with the most politically salient case since Bush v. Gore. Better to lose this particular, high-profile battle, and thus to preserve the Court's unique role as a perceived not-quite-political branch of government.

If this is the correct view, then it means that Roberts was not calling balls and strikes in a neutral way at all, but rather that he simply decided to throw a game. Or, to extend the sports betting metaphor, he decided to throw a game by resting a key player, while still doing damage to his opponents by giving an "enforcer" playing time. (Here, that would mean refusing to go with his ideological colleagues on the taxing power, but making it more likely that his side will win future games to be played on the field of the Commerce Clause.)

Chief Justice Roberts might, therefore, currently be taking some very unwarranted heat from the very people whose long-term interests he has always served -- and continues to serve, even though they are too myopic to see it. Another possibility, however, is that the Chief simply misunderstands what is best for his movement. It might be that the worst thing he could have done is to protect the Supreme Court's reputation for impartiality.

In a recent Dorf on Law post, I discussed the precipitous decline in standards in the modern news media. In my concluding paragraph, I wrote: "It is difficult to see, however, how the people who control those corporations do not gain in the long run (or even the medium-short run) from further public disrespect for the press."

One could argue, of course, that it would be better if the public continued to respect the press, even while the press became subservient to the political agenda of its new masters. What we have seen, however, is that turning the news media into clowns has only helped the conservative movement, even though the biggest clowns are the talking heads in the right wing faux-news outlets. The public simply becomes disgusted with everyone in the mud fight, failing to distinguish truth from lies, and allowing the narrative to take hold that "they're all the same." This means that, say, climate change deniers receive the same consideration (and scorn) as do serious scientists.

Carrying this over to the judiciary, it is at least arguable that Chief Justice Roberts did his political allies (and masters) a disservice by passing up an opportunity to undermine further the public's respect for the judiciary. It is true that there are important cases coming up, in which it will be useful to have the public remain largely quiescent, comfortable in the belief that the Court is not engaged in pure politics. As an immediate matter, therefore, one can see that particular political gains can be made with less fuss, if the Court retains the public's respect.

If the Supreme Court became nothing but the butt of cynical jokes, however, who would really win? The judiciary's ultimate role is to prevent the outcome of every dispute from turning on who has the most power. It often fails in that role, of course, but the beauty of the rule of law is that people agree to go to a neutral arbiter and live by her decision, even if it would be possible for the stronger party simply to take what it wants, daring the weaker party to do something about it.

It is, therefore, possible that the political agenda that the Chief has advanced throughout his life would be better served by simply throwing off any pretense that might does not make right. Personally, I am glad that we have a still-somewhat-independent judiciary, even though I know that its reputation sometimes causes people to tolerate blatantly political results.

On the other hand, I am not sure which way movement conservatives should come out on Roberts. I understand why they are angry with him in the moment. It is less clear, however, whether he is their unappreciated savior, or instead the guy who blew the best chance in years to deal a death blow to an institution that has often stood in the way of their cherished political goals.