In Defense of Chief Justice Roberts

Zachary Crippen: A defeat for Republicans in the short run; a victory for conservatives in the long run.

My Facebook and Twitter feeds today are exploding with information about the Supreme Court’s latest ruling on the Affordable Care Act. My liberal friends are rejoicing that the Supreme Court recognized the “right” of people to have healthcare, and my conservative friends are vilifying the Court for its blessing of unprecedented federal expansion and movement towards “socialism.”

A lot of the latter group’s frustration has been directed at Chief Justice Roberts. Roberts was the swing vote in the case, with the 5-4 decision including Roberts, Sotomayor, Ginsburg, Kagan, and Breyer in the majority and Alito, Scalia, Thomas, and Kennedy in the dissent. Conservatives were hoping that Roberts, a Bush nominee, would side with conservatives. Sotomayor, Ginsburg, Kagan, and Breyer were virtual certainties; Kennedy was largely thought to be the swing vote. Roberts’ joining of the majority is being interpreted as a stab in the back to the conservative cause.

That’s a pretty narrow way of looking at the issue, and stems from an ignorant understanding of true conservatism. It is the type of willful stupidity that mars our politics with the dirty word “partisan,” sacrificing Constitutional requirements in deference to ideological loyalty. The opinion from Chief Justice Roberts is a conservative victory for two distinct reasons. First, it does not at all afford unprecedented powers to the Federal government, and even limits them in application of the mandate. Second, and even more importantly, Chief Justice Roberts’ refusal to consider or even approach the question in a partisan manner is a textbook model of what a Supreme Court justice needs to do.

It is important to note that Chief Justice Roberts’ opinion, though paralleled by a concurring opinion authored by Ginsburg, is the controlling opinion. That’s important because it is the controlling opinion that is actually binding, and its dicta is most heavily weighed for future precedent. In the opinion, Roberts flatly denied the Government’s notion that the mandate is permissible under the Commerce Clause:

The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.”  . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.

Of course, Ginsburg’s concurring opinion expressed wholesale support for the Commerce Clause argument. Roberts’ authorship of the majority opinion renders this interpretation inconsequential, instead stamping out the government’s argument that its proposal is wholly permissible under its statutory powers in the Constitution. Roberts instead requires that the government call the mandate what it actually is: a tax. While today’s conservatives loathe the ACA legislation, let’s not forget that they haven’t always hated the idea. There was significant talk in the 1990s–with strong bipartisan support–of a healthcare mandate. Republicans are of a different mind today on the issue of health insurance, but conservatives have always hated the idea of federal officers exceeding the Constitutional boundaries of their political offices. That’s exactly what Chief Justice Roberts did not do, which is why this is a conservative victory (albeit not necessarily a Republican one).

Many nominal conservatives wish that Chief Justice Roberts had been partisan in his administration of justice, striking down the law simply because it is a bad law. He is upfront in the very beginning of his opinion, noting that he would do no such thing:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

This may be all well and good, some might add–but isn’t there a law higher than the Constitution? In fact, intellectual tradition within conservatism acknowledges that there is a higher law, but does not concede that statesmen under oath to a lesser law can simply appeal to the higher one as they wish. Russell Kirk, in his famous treatise Rights and Duties, reminds his readers of William Henry Seward, a U.S. senator in the mid-19th century. Speaking in March of 1850 on the cause of abolition, Seward remarked that there is “a higher law than the Constitution.” Kirk points us to Orestes Brownson for the conservative response:

Mr. Seward had no right, while holding his seat in the Senate under the Constitution, to appeal to the higher law . . . after having taken his oath to support the Constitution, the Senator had . . . settled the question . . . No civil government can exist, none is conceivable even, where every individual is free to disobey its orders whenever they do not happen to square with his private convictions. (Spence Publishing Company, 1997, pg. 133)

Gone is the concept of civil disobedience. Gone is Seward’s direct appeal to supra-Constitutional authority for relief from civil authority. For those who dislike the edicts, ordinances, and laws that are conceived and executed within the confines of the Constitution, there is a valid recourse to change: elect different leaders. That is a major tenet of conservatism that we’re forgetting. Libertarianism isn’t conservative. Conservatism isn’t atomistic. It relies on a coherent order; American conservatism rightly relies on the American order. This is an order that Justice Roberts is protecting. He may not like the legislation, but he understands his role:

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.  (pg. 6)

That is conservatism at is finest. That is ordered liberty.


  • June 29, 2012


    This is baloney. Roberts shirked his duty to uphold the constitution. Although he did say a mandate is not permissible under the commerce clause, he then made clear that congress & Potus can do anything they want as long as they call it a tax. Under this reasoning they could force us all to buy (pick your) vegetables because they’re good for us. All they have to do is put a large penalty (tax) on it, and Roberts would rubber stamp it. What’s to prevent liberal dems from now passing a huge tax on gun owenership now. They could make it virtually impossible for most Americans to buy guns, basically repealing the 2nd amendment. Under Roberts’ reasoning this would be constitutional. No, I’ve read the constitution. I know Obamacare is not constitutional.

  • July 2, 2012


    Whether or not conservative or liberal, we can all agree on one thing. Justice Roberts was simply doing his job. Just because he was appointed by Bush doesn’t mean he automatically has to vote in a conservative manner. Although I personally do not agree with his decision, I do believe he did the right thing by upholding the law.

  • August 8, 2012

    Sam Hamilton

    Steve – I don’t think the 2nd Amendment argument is a good one because a huge tax levied on guns would, in practice, prevent a large number of Americans from exercising their 2nd Amendment rights. Rights outlined in the Constitution should be given precedence over the desires of our elected representatives to regulate something. Imposing a tax on those who don’t buy health insurance doesn’t impinge on any Constitutional rights. That’s not to say there aren’t other decent arguments against Roberts’ reasoning, but the 2nd Amendment isn’t the best.