Epstein: "What Was Roberts Thinking?" (#UChiLawSCt)

What Was Roberts Thinking?

The dust has hardly settled on the Supreme Court’s decision over the Affordable Care Act (National Federation of Independent Business v. Sebelius, i.e. NFIB). It will take some time to pull together all the discordant threads in Chief Justice Robert’s decision, which will continue to puzzle, bemuse, please, and outrage for months and years to come. He did well on his treatment of the Medicaid extension. But on the crucial issue of the individual mandate and the taxing power, he sounds like a lawyer who is too clever by half.  The point here is ironic, for without question, the Chief Justice came to his decision by self-consciously marching to the beat of two drummers: judge and statesman.

The Roberts Tango: Statesman or Umpire?

He takes on the role of the umpire judge because he claims to be a lawyer, and not a social planner, so that his decisions have to do with questions of entitlement and government power, not with wisdom and politics. It may be that Supreme Court justices are not, as Roberts has sometimes said, just umpires who call balls and strikes. But the reason that this model of strict interpretation has long had a strong appeal to the Chief Justice is that it affords him a way to resist the charge that he has led the Court in the usurpation of the functions of the democratic branches of government, by making policy as he sees fit.

Accordingly, he is keenly aware of his statesman’s role as the Chief Justice of the United States Supreme Court. He has two obvious role models to look to. The first is Chief Justice Charles Evans Hughes who, in NLRB v. Jones & Laughlin Steel Corp., essentially switched course at the eleventh hour to sustain the constitutionality of the National Labor Relations Act under a reading of the Commerce Clause that increased the size of the federal government one-hundred fold (or more). The second model is Chief Justice Earl Warren, who led a unanimous court in holding that segregated institutions had “no place” under the equal protection clause in the decision for Brown v. Board of Education.

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