In retrospect, we probably should have seen it coming. After Roberts’ first term, Jeffrey Rosen interviewed the new Chief Justice and wrote a long piece in The Atlantic analyzing his motivations.
Roberts’ stated focus was not his commitment to originalism or his oath to the Constitution, but pulling the Court to the middle to convey unanimity:
“A justice is not like a law professor, who might say, ‘This is my theory … and this is what I’m going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area,’” he explained. Instead of nine justices moving in nine separate directions, Roberts said, “it would be good to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record.”
“You do have to [help people] appreciate, from their own point of view, having the Court acquire more legitimacy, credibility; [show them] that they will benefit, from the shared commitment to unanimity, in a way that they wouldn’t otherwise,” he said. Roberts added that in some ways he considered his situation—overseeing a Court that is evenly divided on important issues—to be ideal. “You do need some fluidity in the middle, [if you are going] to develop a commitment to a different way of deciding things.” In other words, on a divided Court where neither camp can be confident that it will win in the most controversial cases, both sides have an incentive to work toward unanimity, to achieve a kind of bilateral disarmament.
When viewed from this perspective, perhaps it was obvious that Roberts would refuse to side with the Justices willing to strike down all of Obamacare. Justices Scalia, Thomas, Alito, and Kennedy(!) were prepared to rule that the individual mandate is not authorized under the Commerce Clause and is not severable from the rest of PPACA. It even appears that Roberts was prepared to join them. Justice Scalia’s opinion (which was ultimately a dissent) refers to Justice Ginsburg’s concurring opinion as the dissent, presumably because Scalia was originally writing for the majority.
To boil it down, the prevailing Commerce Clause test requires that which is being regulated to be economic activity that substantially affects interstate commerce. The failure to purchase Obamacare-approved health coverage does not meet this test, primarily because inactivity does not equal activity.
Roberts started his decision with this analysis, which had the unfortunate effect of misleading many media outlets (mostly caused by an embarrassing CNN-led chain reaction) to report that the mandate was struck down. But Roberts’ Commerce Clause analysis was only the beginning. Although never seriously addressed in the lower courts, briefed, or discussed during the interminable three days of oral argument, Roberts ruled that the mandate (and the vast majority of the rest of Obamacare) survives as a tax.
And that’s where it really got weird. The Anti-Injunction Act (AIA) prevents challenging a tax before it is collected. If the AIA applied to the mandate, it could not be challenged until 2015 when those who fail to comply with the mandate must pay the fine. But is that fine a penalty, or is it a tax? Trick question: It’s both. It’s a penalty for purposes of the AIA because Congress did not label it as a tax. It’s a tax for purposes of Constitutional authority because, according to Roberts, it functions as a tax:
“The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
It is well within our role to pass upon the wisdom of Roberts’ decision. His desertion of originalism in the most important decision of his career will forever define his legacy.