John Roberts and the Last Temptation

The consensus among those entitled to express an expert opinion – a class that does not include me – appears to be that Chief Justice Roberts not only wanted and intended to strike down the individual mandate but actually voted to do so before changing his mind.

I have seen no one claim that this resulted from Justice Roberts’s sudden appreciation of the merits of the “if it looks like a duck” argument that the mandate should be construed as a tax. His motive is universally assumed to have been institutional: to prevent the hardening of the perception that the Supreme Court is simply the least democratic and transparent of three political branches of government.

If that is the case, it seems to me that he outsmarted himself. If the Court is to be respected as a court, then it must appear that its members are practicing jurisprudence and not mere politics: that they decide cases according to the law, rather than simply taking positions on issues. But does anyone believe that about what Justice Roberts did today? No one that I know of.

So in trying to avoid the perception that the Republican majority on the court acts purely politically, the Chief Justice made it obvious that he was acting purely politically. Even if you think that upholding the mandate was the right deed, doing it so transparently for the wrong reason vitiated its intended benefit.

I think the technical term is “own goal.” And no, it doesn’t make me happy. Judicial review is one of the great American constitutional innovations, and the last thing the country needs right now is to have one more major institution fall into public contempt.

[Cross-posted at The Reality-based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.