At Ten Miles Square, John Hopkins’ Steven Teles, who’s written an important book on the conservative legal movement, and who predicted a result much like the one the Supreme Court produced, offers his expert take on the significance of Chief Justice John Robert’s position in the ACA decision. His main argument relies on a baseball metaphor:
The best way to understand the difference between Roberts and the dissenters is to think of two pitchers who are throwing to a batter who is crowding the plate. The first pitcher throws at the batter’s head, while the second brushes him back. At least in this decision, Roberts decided to be that second kind of pitcher. Roberts wanted to send a signal to the other branches that there are limits on government, and the ACA was really crowding the plate. But he didn’t want to hit the pitcher and invalidate the whole law. So declaring that the mandate violates the Congress’ power under the commerce clause but upholding it as a tax does what Roberts wanted to do: get Congress to pay closer attention to constitutional norms while not precipitating a bench clearing brawl.
I will obviously defer to Teles’ superior knowledge of where Roberts seems to fall in the constellation of conservative jurists, and his judgement that the Chief isn’t as radical an activist as many liberals feared he would be. But I still think something else may be going on, as some of the conservatives adjusting to the decision seem to have concluded: Roberts exercised “judicial restraint;” at the same time, however, he managed to deliver not only his “brush-back pitch” but a nice, easy talking point about ACA relying on a “tax.”
It’s also important to recognize the long-term stakes involved in the kind of conservative assault on the Commerce Clause that the four dissenters supported. It’s entirely possible conservatives will be able to dispose of ACA via the executive and legislative branches, particularly if they do well in November. But undermining the very popular New Deal and Great Society programs will require a truly audacious coup. If that is part of Roberts’ long-term agenda for “his” Court, he may well want to move cautiously–but move steadily over time. We’ll just have to wait and see.
