The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, both Ilya Shapiro, in his column at the Federalist, and I, in my remarks yesterday at the Heritage Foundation, claimed that Chief Justice Roberts' decision to uphold the Affordable Care Act led to the demoralization of the popular constitutionalist movement that was the Tea Party, which in turn led to rise of Donald Trump in the Republican Party. In a post today, Orin claims that Ilya (and possibly me as well) unfairly characterized the Chief Justice's opinion in NFIB v. Sebelius as "illegitimate" and "a dishonest product of a corrupt court."
Ilya can speak for himself, but in my remarks at Heritage (which you can watch here), I expressly characterized the Chief Justice's view as principled, but based on the wrong principle: that of deference to majoritarian will. Here is what I said about the judicial restraint approach that I attributed, first to Robert Bork and Antonin Scalia, and then to Roberts:
This is not an unprincipled position. But unfortunately, it is based on principles that modern conservatives have inherited from the Left—and by "left" I mean the political progressives of the early 20th Century. In my book, I devote a whole chapter—Chapter 5—to the rise of progressivism and what I call the "democratic" constitution.
Those who adhere to a democratic constitution view "we the people" as a group that is entitled to rule according to its "will." But the "will of the people" can only be the preferences of a majority of the people. A democratic constitution is therefore needed to establish mechanisms by which the preferences of the majority can be "re-presented" and then enacted into law. And anything that interferes with the will of the majority—like unelected, unaccountable judges—is suspect.
And here is what I said about the role Chief Justice Roberts' decision played in the demoralization of constitutional conservatives:
For two years, the nation was transfixed by the legal challenge to Obamacare. A genuine popular constitutionalist uprising had set the stage for a renewal of our Republican constitution. Tea Party activists—and just plain old Republicans—looked to the Supreme Court to uphold a limit on the growth of federal power. True, Democrats and the Left intelligentia would have screamed bloody murder—as they did after the 3 days of oral argument showed there were five votes for our constitutional theory. But, had the Court invalidated the law, polls show it would have enjoyed the support of a majority of the American people.
And it would have taught the American people an invaluable lesson about their Constitution and the courts. No Americans knew about the Gun Free School Zone Act that the Rehnquist Court had invalidated in 1995. Most Americans were clueless about the civil cause of action for gender-motivated violence that the Court invalidated in 2000. Only a minority of Americans truly cared about the use of medical marijuana that the Court had failed to protect in 2005.
But virtually everyone who paid any attention to public affairs was aware of our challenge to Obamacare. Had it been invalidated and the decision remanded to the now-divided Congress to devise a new and perhaps even genuine reform of the existing regulations of health insurance, it would have shown the American people that there were indeed limits on the power of Congress.
Perhaps more importantly, it would have shown the Tea Party constitutionalists that their efforts had finally paid off. They had put their faith in the Constitution and the courts, and that faith was rewarded. But instead they got a hard kick in their teeth. And the effect of that kick was felt this week.
Listen again to the words of John Roberts to the Tea Party activists who were counting on him: "it is not our job to protect the people from the consequences of their political choices." What else did that mean to them if not: "it is not our job to uphold the limits on federal power"? Go away from the court house. Go away from the judges. Go away from the Constitution itself and fight this out among yourselves.
Law exists, in part, to direct the natural urge for self-preservation and self-defense into peaceful channels. The Constitution exists to provide the law that governs those who govern us. And the judiciary was created, in part, to hold the government within its just powers and, by so doing, avoid the Hobbesian war of all against all.
But at the very moment he was called upon to teach the American people of the value of their republican Constitution, Chief Justice Roberts asserted the judicial restraint of the democratic constitution and turned them away. And that, my friends, was the end of our constitutional moment. That was the beginning of the end of constitutional conservatism as a political movement. And it kindled the resentment and populism that led to Donald Trump….
In sum, like the Critical Legal Studies movement of the 1980s, Chief Justice Roberts told the people that there were no Constitutional limits on federal power, there was only politics. Now go out and get your own Obama to right whatever wrongs you think you suffer. And now they have. And their new political paladin's name is Donald Trump. A man who knows nothing about the Constitution, and who couldn't care less.
It is hard to think of two people as different from each other as well-mannered John Roberts and the crude Donald Trump. Yet, in the end, they both believe that courts ought to bend to political will—at least when the chips are down. Donald Trump is what John Roberts told Republicans they needed to find. And they found him.
So, in my telling, it was Chief Justice Roberts' decision to defer, not any nefarious motive or corruption, that demoralized constitutional conservatives.
And here is what I said specifically about the person that Ilya and I were supposedly "delegitimizing" the way Donald Trump now does to his opponents:
I believe that John Roberts is a good and decent man. I know he was a brilliant Supreme Court advocate. And, though I have only met him a few times, I would be happy to have him as a friend. But John Roberts was selected by President George W. Bush because he was a judicial conservative, who hewed to the doctrine of judicial restraint—or what he called "judicial minimalism."
Does that sound anything like Donald Trump? I do not see how any of this fits Orin's delegitimation thesis. But neither do I recognize his reading of what Chief Justice Roberts did in his opinion. Here is Orin's somewhat awkward description of the reasoning:
You'll recall that Sebelius upheld Obamacare's individual mandate under the Taxing Clause in an opinion by Chief Justice Roberts. In a different part of Chief Justice's opinion, joined only by himself, Roberts stated his view that the individual mandate was not additionally allowed under the alternative ground of the Commerce Clause.
I certainly hope Orin does not teach the NFIB opinion this way to his students.
Far from upholding "the individual under the Taxing Clause," Chief Justice Roberts began his opinion with a lengthy explanation of why an individual purchase requirement would be unconstitutional under the Commerce and Necessary and Proper Clauses ("for the reasons explained above, the Commerce Clause does not give Congress that power.") Indeed, those in the courtroom that morning who listened to him deliver his opinion were convinced that the challengers had won (as both FoxNews and CNN inaccurately reported).
Precisely because he agreed with the four dissenters (and we challengers) that such a purchase mandate would be unconstitutional, Roberts' opinion then pivots to adopt a "saving construction" that eliminated the "requirement" to buy insurance that was enforced by a "penalty"—which he admitted was "[t]he most straightforward" and "natural" reading of the statute—and replaced it with an option to buy insurance or pay a modest and noncoercive tax (because the penalty in the statute happened to be small). And he did so for the erroneously principled reason I described above: "Granting the Act the full measure of deference owed to federal statutes, it can be so read," and he then defended this move by insisting that it "is not our job to protect the people from the consequences of their political choices."
[Roberts does, I admit, confusingly go on to refer to his newly-constructed "noncoercive tax incentive to buy insurance" as a "mandate."]
Is a "saving construction" that turned a "requirement" into an option and a "penalty" into a tax a "twistification." Well, I think "it can be so read." But I did not speculate about the Chief Justice's motives and neither did Ilya. What I was observing was the demoralizing affect that his decision had on the nascent but increasingly powerful constitutional conservative movement.
In his blog post, Orin is doing to Ilya (and implicitly to me) exactly what he falsely claimed that we were doing to Chief Justice Roberts. Rather than disagree with our arguments about the causal effect of Robert's decision to defer to Congress by adopting a "saving construction"-a thesis which is necessarily somewhat speculative—he decided to delegitimize them as mere "libertarian" political partisanship.
Shapiro's argument relies on what I'll call the politics of delegitimization. When someone does something you don't want, you say they acted for improper and corrupt reasons. It's part of a rhetorical strategy that has found particular favor on the political right since Obama was elected. That strategy, repeated hundreds of times in different contexts, was designed to further conservative and libertarian ends.
And Volokh readers will recall that this is what Orin did to our constitutional arguments throughout the litigation: Treat them as merely "political" and "libertarian" rather than the serious constitutional arguments they were—and were shown to be when five justices accepted them including John Roberts.
Orin was wrong to have been so dismissive of our constitutional arguments back then, he is wrong now about what Chief Justice Roberts said in his opinion that validated our arguments, and he is wrong to accuse us of "delegitimizing" Chief Justice Roberts, rather than disagreeing with him on principled grounds and then claiming that his decision to turn conservatives away from the courts had potentially grave, though unintended, political consequences.
Those who missed it can watch my Heritage remarks here: