When many of us were covering the decision from the Supreme Court, one thing that was immediately noted was the the decision of Associate Justice Anton Scalia read like a majority opinion. The opinion not only referred to “the dissent” as if it were the majority opinion (though sometimes justices even in dissent can refer to other dissents). Reports are now indicating that Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the Affordable Care Act. The report is a serious breach in the normally secretive court in its internal deliberations and contains considerable detail showing a hard effort by the Court’s swing justice Anthony Kennedy to convince Kennedy to return to the fold. The report is likely to increase the feeling of betrayal by those who felt that opinion harmed federalism by reaffirming the taxing power as an easy avenue to circumvent state rights. That was the subject of my column the day after the ruling.
The conservatives responded to the defection by refusing to sign on to any part of the Roberts decision, even though they were in agreement on some parts.
The reports say that Roberts initially voted in conference with the conservatives – giving himself as the most senior justice on that side the presumptive majority opinion. Roberts was generally viewed as a lock for the conservatives as opposed to the more moderate Kennedy.
As I said in my USA Today column, I credit Roberts to ruling as he believed was correct — regardless of the backlash or popularity. I simply do not see the consistent line of principle in the rationales.
I have previously expressed my disagreement with the Roberts opinion on federalism grounds. This will certainly be one of his most famous opinions, but I would not call it one of his best. The opinion seems to me to be hopelessly conflicted and inconsistent. After denouncing the use of the Commerce Clause to justify the law as a claim without a limiting principle, he embraced a view of the tax authority that sweeping and potentially limitless under this “functional approach.” He expressly states that tax authority can be used to simply influence decisions of citizens.
Moreover, I do not get the widespread view that this opinion showed Roberts breaking away from the rigid 5-4 split of the Court saving its credibility. This was a 5–4 decision that was heavily splintered. This is the only time that Roberts has joined a 5-4 decision on the side of the liberal justices. I do not see how this is such a roaring victory for collegiality or unity. What I do see is another example of why we need to expand this Court. As expected it can down to one justice — in this case a justice who literally flipped the result in the final stretch of the deliberations. With only 9 nines, individual concurrences can undermine the clarity or meaning of such a decision. The reason I wrote the earlier column (and a longer piece) on the expansion proposal in the Post — the follow up column in the Guardian — was because the momentous decisions this week shows the dangers of this concentration of power — a concentration that other leading nations avoid. I would have felt the same way if the result were flipped — as many of us expected.
With a larger court, it is certainly possible to have a 9-8 split (many people missed the fact that I proposed a 19 member Court in the hopes of returning to two justices serving by designation each year on lower courts). However, the experience with both appellate courts sitting en banc and foreign high courts show that these alliances are more fluid and less predicable. I am scheduled to discuss this proposal on NPR’s Talk of the Nation today.