A reply to Randy Barnett on Chief Justice Roberts and the Obamacare case

|The Volokh Conspiracy |

On Friday, I argued that the rise of Donald Trump was fueled in part by political narratives of corrupt government that were used on the right during the Obama presidency to achieve conservative and libertarian ends. Those narratives backfired, I argued, because Trump cleverly co-opted them and deployed them against conservative and libertarian ideas. I used an essay by Ilya Shapiro as a springboard, in part because Shapiro's essay nicely repeated a common refrain on the right that NFIB v. Sebelius, the 2012 Obamacare case, was illegitimate because it was only a political decision by Chief Justice John Roberts.

A few hours later, my co-blogger Randy Barnett took offense at my post for wrongly accusing him of trying to delegitimize Sebelius in his recent Heritage lecture. According to Randy, nothing that he said in his lecture last week fits into my thesis that critics of Sebelius tried to undermine its legitimacy.

There seems to be some confusion about my original post, so let me clarify. My post wasn't about Randy's speech last week. My post was about political messaging on the right that helped fuel Trump's rise, not one speech delivered after Trump already became the presumptive nominee. I want to make clear that I did not intend to say that Randy's speech last week tried to delegitimize Sebelius, or tried to dismiss it as political, or otherwise said that the decision was non-legal and therefore should be overturned.

If Randy wants his statements to be the focus, though, it's worth recalling what he said in 2012 when Sebelius was in the news. I assume Randy would not deny that he tried to undermine the legitimacy of Sebelius then. For example, here's Randy in National Review a few days after the decision came down:

Randy Barnett, the Georgetown law professor who was an intellectual spark plug for the legal arguments against Obamacare, is optimistic about the future. "The fact that this decision was apparently political, rather than legal, completely undermines its legitimacy as a precedent," he tells me. "Its result can be reversed by the people in November, and its weak-tax-power holding reversed by any future Court without pause."

This quote was widely circulated in the weeks following Sebelius as an example of the conservative campaign to discredit the chief justice and his opinion. The quote was featured in The Washington Post, the New Republic, the Los Angeles Times, and the Christian Science Monitor, among other places.

Randy made somewhat similar comments at the blog. Notably, Randy first announced that an opinion by the chief upholding Obamacare would be "tainted as political" a month before the opinion came out. After the already "tainted" decision was handed down and we could get a chance to read it, Randy blogged at length about the circumstantial evidence that Roberts had switched his vote because he caved to political pressure. In another post, Randy wrote that the opinion was a "political deal" and that any similarities between Sebelius and other Roberts decisions "does not make [Roberts] bending himself into a pretzel to uphold a law when the screws were put to him any less political." "As I have said," Randy added, "8 justices acted on principle: 4 on good principles and 4 on bad principles."

It may be that Randy said one thing publicly in 2012 but that he believes something different today. If so, that's a change he's best situated to explain. But my post wasn't about Randy's new position.