Was It Wrong for Chief Justice Roberts to “Flip Flop” on Obamacare?


As anyone with a television or access to a computer knows by now, the U.S. Supreme Court has upheld the individual mandate, the controversial provision in the Affordable Care Act (ACA) that requires most people living in this country to purchase or otherwise acquire health insurance.  In a 5-4 opinion by Chief Justice Roberts, the Court ruled that the individual mandate falls within Congress’s power to tax.

Beyond the substantive outcome of the case, leaks from the Supreme Court have suggested that Chief Justice Roberts initially voted with the four now-dissenting Justices (Scalia, Kennedy, Thomas, and Alito) to strike down the individual mandate as an unconstitutional exercise of power by Congress.  Some have suggested that the Chief Justice changed his mind out of a concern that the public might lose respect for the Court if it struck down a major piece of Democratic legislation by a 5-4 majority consisting entirely of Republican appointees.

The possibility that the Chief Justice took account of public sentiment in deciding the ACA case has infuriated and outraged conservatives who regard such attention to the public’s views as illegitimate and worthy of condemnation.  Even some liberals, too, may be embarrassed by the possibility that the Chief Justice might not have decided the case strictly “on the merits.”

In this column, I will assume for argument’s sake that the Chief Justice did indeed change his mind in the ACA case out of a concern for the public image of the Supreme Court, though there is no way for us to know whether that assumption is accurate.  I will, on this assumption, examine the claim that a Supreme Court Justice should pay attention only to the legal arguments before him, and not to the public’s perception of the Court, in a politically charged case.

Why Taking Public Sentiment Into Account Might Appear Illegitimate

At first glance, it is easy to understand why people might find it troubling to learn that a judge has decided a case on the basis of how he or she believes the public might react to a contrary ruling.  Imagine, for example, that a woman stands trial for the murder of her allegedly abusive husband.  The people who live in the particular town where the killing took place might have loved the victim, and might now refuse to believe that the victim’s wife could have been justified in taking his life.  At a bench trial (that is, a trial in which the judge, rather than a jury, decides guilt or innocence), however, the judge finds the evidence of abuse compelling, and further finds that the defendant reasonably feared for her own life when she killed her husband.

Should the judge acquit the defendant under these circumstances?  Of course.

Should the judge instead consider convicting the defendant because the people of the town would otherwise be upset, and might even call for his impeachment?  Of course not.  Such pandering to the public would represent an outrageous miscarriage of justice.

Deciding whether to acquit or convict a criminal defendant is, of course, quite distinct from making legal judgments, and judges ordinarily have the luxury of leaving questions of guilt and innocence to a jury.  Consider, then, a scenario more closely analogous to the situation Chief Judge Roberts faced:  A judge is presiding over a jury trial of a man who is charged with using explosives to blow up a school, leading to the deaths of numerous innocent children and adults.  During the trial, the prosecution offers evidence that the defendant had previously used explosives in contexts where other people were present.  The defense strenuously objects to the introduction of this “bad character” evidence, while the prosecution claims that the evidence helps identify the defendant, because both cases involved explosives.

The judge concludes that the rules of evidence prohibit the introduction of the prior act of using explosives around people.  He so concludes because he believes that the act of using an explosive in the past is not sufficiently unusual to identify the defendant as the perpetrator in this case.  The judge deems the evidence relevant only to show that the defendant is the sort of person who would use explosives against people, and such evidence is inadmissible under the character rule.

Imagine, however, that the public would find the exclusion of such relevant evidence offensive, given that most people have never used explosives, and that the jury might erroneously acquit a guilty defendant if its members remain unaware of the defendant’s prior conduct.  Should the judge consider the likely public opprobrium he will face in ruling on the defendant’s objection to the evidence?  Certainly not.

Would it be legitimate for the judge to admit the evidence to avoid public outrage?  Of course not.

This latter scenario may seem to resemble a little more closely what a Justice on the Supreme Court does when he takes public opinion into account in deciding how to resolve a legal question.

Another Perspective on Chief Justice Roberts’s Change of Heart 

Consider, however, some differences between both scenarios above, on one hand, and Chief Justice Roberts’s (presumed) consideration of public opinion, on the other.  In both of the hypothetical examples I described, a specific individual in a criminal trial had the greatest possible stake in the judge’s willingness to apply the law accurately:  the defendant who stood to lose his or her liberty.  At the same time, in both scenarios, the public had a relatively predictable hostility toward a defendant accused of committing a terrible crime.  The purpose of the law in such a case is precisely to stand between the “mob” and the individual, who has yet to be proven guilty beyond a reasonable doubt.  The law, in other words, is there to ensure a fair and just outcome.

In the healthcare case, by contrast, the people with the most at stake in the case are the public.  The litigants on both sides of the controversy represent people who live and work in the United States, and who either accept or reject the legal and policy legitimacy of the ACA’s individual mandate.  To put it differently, the line that divides the litigants in a criminal (or civil) case from the viewing public is much clearer than the corresponding line in a Supreme Court case in which the petitioner is mounting a challenge to the constitutionality of a high-profile piece of legislation.

As people with a stake in the outcome of the case, Americans are aware of a number of things.  First, it is currently an election year, and President Obama would stand to lose credibility as a leader if the Supreme Court struck down a signal legislative achievement of his term in office.  Second, people in the U.S. believe (with good reason) that vague constitutional provisions lend themselves to varying, competing interpretations, particularly in cases that make their way to the U.S. Supreme Court.  And third, anyone who has been watching the Supreme Court understands the current ideological lineup there:  five Justices are Republican appointees who tend to see the world (and the Constitution) in one way, and four Justices are Democratic appointees who are inclined to view the universe and the law in a very different way.  People regard the Justices, in other words, as each having an ideological agenda, and this perception sits uncomfortably with the notion, expressed by Chief Justice Roberts during his confirmation hearings, that a judge’s job is like that of an umpire who must call balls and strikes.

It was in this highly charged climate of suspicion that the Justices were asked to interpret Congress’s powers under the Commerce Clause and the Taxing Clause.  Many Americans understandably worried (or hoped) that the Justices would simply vote for the position that matched their respective political affiliations.  Such votes would yield an outcome that would match the will of the Republican Party, and that could simultaneously help put a Republican president in office in January 2013.  Americans, unfortunately, have already had the experience of the Supreme Court facilitating the election of a Republican president, in the 2000 case of Bush v. Gore, a decision that generated enormous cynicism about the Supreme Court’s integrity.

Chief Justice Roberts therefore faced the following dilemma:  He could vote to strike down the individual mandate and thus decide the case in line with his political affiliation.  This would confirm many Americans’ suspicion that the Justices on the Court are at no greater remove from politics than a member of Congress running for office.  Alternatively, he could vote to uphold the legislation, and thereby give the public reason to hope that he is capable of seeing past his own political loyalties.  In this context, it is not obvious how Chief Justice Roberts could escape a charge of pandering—either to the Republican Party or to the disillusioned public.

Where Conservatives See Betrayal, Liberals See Hope

The petulant reaction of some on the right to the Chief Justice’s decision to uphold the individual mandate is quite revealing.  One cannot help but notice, moreover, that even the Republican appointees on the Supreme Court appear to feel angry and betrayed by the Chief Justice’s decision.  In their own opinions, these Justices completely ignore Chief Justice Roberts’s opinion, failing to join even those parts of it with which they completely agree (i.e., the parts finding that the Commerce Clause did not empower Congress to pass the individual mandate and that the Spending Clause did not authorize Congress to impose new conditions on states’ receiving federal funds for Medicaid).

Their behavior brings to mind an elderly aunt who turns her head away defiantly at the mention of her rebellious son and announces, “He is dead to me.”  Resembling a different age group as well, the Justices behave like teenagers in a clique who believed that they were entitled to their buddy’s assistance in their war against the enemy.  They are apparently now casting him out as retribution for his treachery.  How dare he break ranks?  It makes perfect sense that Chief Justice Roberts would jokingly declare that for vacation, he is headed to “an impregnable fortress.”

For liberals, by contrast, the Chief Justice’s actions are reassuring.  No one entertains the illusion that Roberts will now be liberal when it comes to the various constitutional issues that face the Supreme Court.  But we can see that he is conscious about his own and other Justices’ biases, and that he is aware of the cynicism that invalidation of the ACA would have sown.

A justice’s being less than fully predictable on issues with political implications for an ongoing election campaign is healthy, and suggests room for growth.  Far from the judge who subordinates his own view of the law to the will of the mob, Chief Justice Roberts shows integrity in successfully subordinating his loyalty to his four dissenting brethren to the greater loyalty he possesses:  to the rule of law, and to the public’s investment in a Court that refuses to participate in helping a favored candidate win a presidential election.

7 responses to “Was It Wrong for Chief Justice Roberts to “Flip Flop” on Obamacare?”

  1. forcomment61 says:

    Correct me if I’m wrong, but Flip Flopping is when you’ve made a prior decision and, when taking a look at the decision at a future time, you make a decision opposing your previous decision. I’m not aware that the healthcare bill was voted on previously by this Supreme Court or Justice Roberts. What you should say is “Was is wrong for Chief Justice Roberts to be inconsistent with the pattern of his past decisions?”

  2. Mark W. Keller says:

    I found it particularly telling that Roberts wrote the majority opinion which will now enter the American book of common law and become national precedent. To me, that indicated that he was swayed in some manner, and that being allowed to speak for the majority was a concession the liberal justices granted to get the outcome they wanted.

    That said, it absolutely was wrong for him to “flip-flop” on the ACA if he did so taking the opinion of the public into consideration. If he did so for the reasons he stated in his opinion, namely that the court should seek to uphold legislation and let the legislature fix the errors, then that would be perfectly acceptable. This is precisely what the Supreme Court should be doing.

    Had Chief Justice Roberts gone with the dissenters and struck down the ACA as he was expected to do, some conservative legal blogger would’ve been writing “Where liberals see ‘business as usual’, conservatives see the rule of law in action.”

  3. Melinda says:

    One should also remember that a larger number of respectable federal jurists in the lower courts, some quite conservative, found the law constitutional and 4 jurists on the Supreme Court who are equally qualified as Roberts found the law to be constitutional. Maybe Kennedy’s opinion was not compelling enough to cause Roberts to join it in the end. Whoever is assigned to write the majority opinion has the burden of getting 4 other Justices to join. If the opinion cannot get enough Justices to join, it becomes the minority opinion. The original vote is not binding.

  4. E says:

    I strongly believe that he called it as he saw it. If that’s how he read the applicable law than he did his duty. If he wrote his opinion to appease public sentiment then he violated his duty.

  5. It is not Chief Justice Robert’s position and/or actions which deserve censure. That the other 4 Republican appointees would act like high school children in a clique (we’re not talking to you anymore – you can’t sit at the popular kids’ table) shows a lack of integrity and lack of respect for dissenting opinion. That this behavior comes from any of The Nine is disturbing. These people, above all others, are assumed to have an ability to think through the issues and apply the law in an unbiased manner. Their behavior in the wake of the decision and in writing the dissent should make them hang their heads in shame. History will judge them – and not kindly.

  6. presting says:

    Although she casts her argument as a hypothetical, Prof. Colb is probably correct to suggest that Chief Justice Roberts’ vote on NFIB v Sibelius was motivated by a desire to preserve respect and trust for the Court. This is different from simply wanting to be popular with the public. It would be a selfless goal, with a personal cost.

    But I’m not convinced by her larger argument that any Justice should be motivated by goals other than properly interpreting the law. Even if the means are necessary, are they proper? After all, there is a constitutional duty which each Justice has personally sworn to uphold. If Robert’s best legal judgement had been to side with the conservatives, he was morally bound to vote with them.

    More to the point, Colb’s examples and argument do not show that it’s ever necessary for a Justice to to vote against her better legal judgement. She is surely right that we don’t want our Justices to be predictable on narrow ideological grounds. They would have just the right sort of predictability if they were making persuasive arguments from clearly convincing evidence. Then we’d read their opinions and think to ourselves, “Wow, what a great job they’re all doing.”

    Instead of what we’ve all been thinking since we lost Justice O’Connor. {sob}

  7. manderso says:

    I wonder if conservatives ever think about Harriet Myers? George Will?