The Roberts puzzle

Following the surprising alignment of Chief Justice John Roberts with the so-called liberal wing of the US Supreme Court to hand president Obama a victory on the Affordable Care Act, there has been much speculation as to why he ruled the way he did. Speculating on the private motives of public figures is usually a waste of time (but fun!) and we will have to wait for his memoirs to find out if his reasons were different from his stated ones. But the nature of such speculations do tell us a lot about the state of our political discourse.

The simplest theory is to take his reasoning at face value, that he thought the individual mandate was constitutional under the government’s taxing power, an argument made by the Solicitor General during oral arguments back in March and which seemed at that time to resonate with Roberts. But in our age of hyperventilating speculations about ulterior motives, straightforward motives fall by the wayside in favor of the more exotic and there has been much discussion about possible ulterior motives for Roberts’s decision, ranging from sober legal theorizing to outright nuttiness, the latter from those aligned with the Tea Party agenda who saw his apostasy as a sign of the impending apocalypse.

The theories have been all over the map. One is that Roberts was originally aligned with the conservative wing to reject the law but became increasingly alarmed at the extreme nature of the opinion that was being drafted and feared the court being viewed as overreaching in overturning congressional laws. He then switched sides some time ago and resisted overtures to return.

Less plausible is the theory that he switched sides at the very last minute, finding in the taxing provisions of the constitution a convenient excuse to uphold the law. There is some evidence for this buried in the dissenting ruling but I am not persuaded. While judges reportedly do get swayed by their colleagues’ arguments, a Chief Justice of the Supreme Court, deliberating for so long on such an important case, would have thought through all the ramifications (both legal and political) of his decision and it is unlikely that something new would have occurred to him at the very last minute to cause him to jettison his decision impulsively.

Another theory is that Roberts is playing a deep and long game in favor of his right-wing ideology, that by upholding this specific law but by denying that it was valid under the commerce clause, he was laying the groundwork for future decisions that would advance the conservative cause by weakening the main vehicle by which the federal government was able to override the powers of the states. In this scenario, the Affordable Care Act was the pawn that he sacrificed in order to eventually win the game.

There have been prior speculations about this kind of judicial gambit. In my own 2009 book God vs. Darwin: The War Between Evolution and Creationism in the Classroom , I discuss how Supreme Court justice Hugo Black surprised people by seeming to be sympathetic to religious educational institutions in the 1947 case Everson v Board of Education of Ewing, giving parochial schools their 5-4 margin of victory in that case. But in his reasoning he inserted language, including Thomas Jefferson’s famous ‘wall of separation between church and state’ metaphor, that was used in subsequent Establishment Clause cases to strengthen that wall, striking down one religious practice after another in public schools. It was suggested at that time that Black, a former member of the KKK and thus suspected of being anti-Catholic, used his Everson ruling to disarm and win over his religious critics to give himself greater credibility for his later actions that went against religious interests. Roberts, it is suggested, was using the ACA case to gain ‘centrist’ credibility in order to later lay waste to liberal legal precedents.

But again, I am not too persuaded that people think that strategically, and observers may be imputing deep motives to behaviors that do not merit them. After all, saying that the individual mandate was not covered by the commerce clause was an argument that even I found plausible, just as I found plausible Black’s reasoning in the Everson case, even though in both cases those arguments went against my personal preferences. Using the commerce clause to coerce people into buying health insurance from private profit seeking companies was always a bit of a stretch and by saying that he thought it was unconstitutional, Roberts was not really creating a radical new theory as far as I can tell, though legal experts can correct me.

But the more curious speculations for Roberts’s action come from those who had been so sure that he was a reliable vote against the ACA that they simply cannot believe that his was a rational decision. Such people seem to have become unhinged. Their theories are so bizarre that they cannot be taken seriously but they do open a window into the minds of their proponents that reveal how people can become so convinced of the rightness of their own point of view that anything that contradicts it cannot simply be a different perspective or mistaken but must be due to insanity or evil intent.

One speculation advanced by radio talk show host Michael Savage is that the medication that Roberts supposedly takes to control his seizures has so addled his brain that he was not thinking logically. Savage goes on to say that as a result of Roberts’s mental collapse, this verdict is the first step towards the US becoming Venezuela or Cuba, whatever that is supposed to mean. There is, of course, no evidence that Roberts is losing his marbles.

Another theory is that he was coerced into his decision by pressure from president Obama and others that they would ‘delegitimize the Court’ if he ruled against them. How exactly they would do that is not clear. The judges of the Supreme Court are of course as aware as anyone else of the political climate they work in and the possible consequences of their verdict and undoubtedly take them into consideration, but what extra pressure this particular administration can exert that others could not in the past is not clear.

Louisiana governor Bobby Jindal, not one of our greatest thinkers, advanced the novel notion that Roberts might be wanting to suck up to the major media by giving them what they wanted.

But the winner for the most bizarre theory has to be this one put out by a right wing blogger on the day the verdict was released.

Someone got to Roberts. I bet they got to him and told him he has to vote this way or members of his family – kids, wife, parents, whoever – were going to be killed.

Later this afternoon, it’s going to come out that Roberts was coerced. A Secret Service agent overheard Obama and Axelrod discussing the Roberts blackmail. He managed to get them on tape discussing it. Later this afternoon, the whole story will come out, Roberts will issue his REAL opinion, and Obama and Axelrod will be taken away in handcuffs.

Now this is just some guy with a blog whose ravings cannot be taken seriously, though I did see it linked to by several different sites suggesting that it has had some exposure. What is interesting is the mixture of speculation and actual factual information and that he is so specific in his short-term predictions, none of which came to pass. How could this happen? Did he simply make stuff up? What’s the point since it will be debunked almost immediately? Did he hallucinate? Did someone else hallucinate and tell him things that he accepted uncritically?

Jeeves pointed out the importance of understanding the psychology of the individual, and what this kind of feverish raving tells us is that there are some crazy people out there.


  1. machintelligence says

    I have a hard time believing that conservatives are unable to appreciate the concept: you lost fair and square, now get on with your life. Instead they say that Roberts committed treason and should be impeached. We seem to be dealing with high level insanity here.

  2. jamessweet says

    A friend of mine (who has always leaned conservative, but is also not completely insane, meaning that more and more he has come to side with the American conservative party — the Democrats — over the American batshit fucking crazy party) advanced an interesting hypothesis on Facebook: That Roberts was originally intending to vote strike down the mandate, but when it became clear that Kennedy was siding with the conservative wing and that therefore a very popular law was about to be struck down, he “did what a Chief Justice has to do” (my friend’s words) and switched sides in order to preserve the court’s legacy and credibility — at the same time authoring an opinion, of course that was the most “conservative” way to arrive at that decision.

    On a side note, I share your feelings about the plausibility of the anti-ACA arguments here, i.e. while I am confident that the court’s decision is better for America than if they had ruled otherwise, on the constitutionality issue itself I am somewhat undecided.

  3. Thorne says

    It seems that few people are willing to accept the idea that both Roberts AND Kennedy voted their consciences rather than toeing the party line. Isn’t that what Supreme Court judges are supposed to do?

    This does not mean that the other seven judges DID toe the party line. Without evidence to the contrary I would have to assume that they also voted their consciences. It is possible!

  4. left0ver1under says

    Or there could be a simpler explanation for Roberts’ decision.

    Judge John E. Jones III of Pennsylvania is a republican, appointed by pResident George Bush to be an “activist judge” (read: make decisions in favour of conservative and republican causes).

    But in the case of Kitzmiller v. Dover Area School District (the suit that sought to put creationism in schools), Jones ruled against the creationists on the basis of evidence, of the US constitution. He surprised everyone by making a non-partisan decision.

    I’m not saying with certainty that Roberts made a decision based on evidence alone, but it’s possible.

  5. jamessweet says

    You’ll have to forgive us if, after debacles such as Bush v. Gore, as well as the extreme rarity of cases in which SCOTUS judges ever surprise us, that some of us are a bit cynical about that. Scalia and Thomas in particular are notorious for having a nominal framework for interpreting the constitution that nevertheless tends to vanish in a puff of smoke as soon as it would lead to a result that conflicts with their ideology.

    I do think it happens, and I do think that is the case with Kennedy here. It may have been the case with Roberts as well… but if so, it reveals some things about Roberts which a lot of us weren’t expecting. FWIW, I do hope that is the case. But past experience has made many of us skeptical about this possibility.

    (To be clear: I’m sure every justice believed she was voting according to sound constitutional interpretation. However, looking at the history of the court and knowing a thing or two about humans reason, I think that a large amount of the time the constitutional interpretation is constructed post hoc to justify the ideological conclusion each justice already had in mind. Not that they are aware they are doing it post hoc, but…)

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