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A Justice in Chief—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on Newyorktimes.com on June 28, 2012.

A Justice in Chief
By Linda Greenhouse ’78 MSL

The title “chief justice of the United States” is not in the Constitution, and neither was it in the first Judiciary Act by which Congress organized the federal courts. It came into use only casually and gradually, by the late 19th century replacing the favored “chief justice of the Supreme Court of the United States.” Even today, people often mangle the title as “chief justice of the Supreme Court.”

The mangled title is one that John G. Roberts Jr. would have had trouble claiming on Thursday. In his controlling opinion in the health care case, he spoke largely for himself. In 42 of his 59 pages, he spoke for none of his fellow justices. He led no one.

But the title that he actually goes by, chief justice of the United States, seemed a good fit. He spoke for the country.

His decision to call the mandate a tax and to provide a clearly reluctant fifth vote for upholding it as within the Congressional taxing power was a deeply pragmatic call that saved the Affordable Care Act. Certainly by no coincidence, it also saved the Supreme Court from the stench of extreme partisanship that has hung over the health care litigation from the moment more than two years ago that Republican state officials raced one another to the federal courts to try to erase what they had been unable to block.

There is much to parse in the 193 pages of opinions in National Federation of Independent Business v. Sebelius. In its treatment of Congress’s power under the Commerce Clause (only the four most liberal justices would have upheld the law on commerce grounds) and its limited view of federal power to place conditions on states’ receipt of federal money, the decision may have implications that extend well beyond this case.

But it is Chief Justice Roberts’s extraordinary role that is most intriguing. He has just completed his seventh term as chief justice, and at 57 could well serve another quarter-century or longer. Clearly he is playing a long game. For most of his tenure so far – beginning in year two, after his conservative majority solidified with the departure of Justice Sandra Day O’Connor and the arrival of Justice Samuel A. Alito Jr. – his goal has seemed clear. It has been to turn the court to the right on the hot-button issues of race, religion and abortion, as well as to harness the First Amendment as a deregulatory tool. Did his decision to save the Affordable Care Act, the hottest of all hot buttons so far, divert him from his long-term goals, or offer an alternative, if more oblique, path to them?

The chief justice’s mentor and predecessor, Chief Justice William H. Rehnquist, was a master of the long game, willing to tack left if necessary. In 2000, for example, he wrote a majority opinion, over the furious dissents of Justices Antonin Scalia and Clarence Thomas, upholding the Miranda decision against a Congressional effort to declare it inoperative. William Rehnquist didn’t like Miranda v. Arizona when the Warren Court decided it in 1966, and he didn’t like it any better in 2000, but what he liked even less was an attempted Congressional incursion on the Supreme Court’s authority to interpret the Constitution.

Just as clearly, John Roberts doesn’t like the Affordable Care Act. He went to great lengths in his opinion to show his total agreement with the plaintiffs’ core argument: that the requirement to buy health insurance was an unprecedented effort by Congress to force people into a market they had chosen not to enter, to create commerce where none existed. Justice Ruth Bader Ginsburg’s dissenting opinion pierced gaping holes in the chief justice’s analysis. But he stuck to his position, coming within an inch of invoking what Justice Ginsburg ironically labeled “the broccoli horrible” and warning that “under the government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.”

Since there were four justices who also saw the mandate that way, as Justices Scalia, Thomas, Alito, and Anthony M. Kennedy explained in an unusually structured opinion that all four signed as co-authors, the mandate might have died right there. But then the chief justice abruptly pivoted and declared that because the penalty for not buying insurance functioned as a tax, it could be upheld as a tax and the mandate was therefore constitutional. Justices Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan agreed, making this the only portion of the chief justice’s opinion labeled “opinion of the court.”

But he didn’t speak for the court in the entirety of his tax analysis. Instead, speaking only for himself, he acknowledged that he found it a stretch to call the penalty a tax. “The statute reads more naturally as a command to buy insurance than as a tax,” he said, adding that he would have upheld the mandate as a regulation of commerce if he thought the Constitution permitted it. “It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question,” he said – necessary because “we have a duty to construe a statute to save it, if fairly possible.”

This is where the seams of the chief justice’s opinion showed, leading to some speculation that the abrupt analytical pivot was actually a last-minute vote switch. For the theory that Chief Justice Roberts pulled back late in the process from declaring the mandate unconstitutional, the best evidence might be external to the opinion, rather than inside it. Around Memorial Day, a number of conservative columnists and bloggers suddenly began accusing the “liberal media” of putting “the squeeze to Justice Roberts,” as George Will expressed the thought in his Washington Post column. “They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional,” Mr. Will wrote. Although the court has been famously leakproof, Mr. Will and some of the others are well connected at the court, and I wondered at the time whether they had picked up signals that the chief justice, thought reliable after the oral argument two months earlier, was now wavering, and whether their message was really intended for him.

Whatever the scenario, it’s possible to see Chief Justice Roberts’ role as serving his long-term goals. He made a vigorous argument that Congress had overreached, while at the same time calling on the taxing power as a deus ex machina by which to avoid the logical consequences of his own constitutional analysis. He thus navigated the Supreme Court through a perilous election-year landscape, saving it from the appearance of open partisanship while setting down markers for the game that resumes in October and for the long years ahead. After seven years, he may still be learning, but it’s worth remembering that he had a master teacher.