Justice Roberts

The court's dismissal of the commerce clause in the health care ruling is troubling for the long run.  But for the moment, Justice Roberts has saved this country.

John Roberts Saves Us All

• By Jonathan Chait

We will never complain about you again. Until next term.

 

Two fears have hovered over American liberals since the legal case against the Affordable Care Act began wending its way through the legal system. The first was a fear that conservatives would succeed in revising what Jeffrey Rosen called (in a prescient and classic 2005 New York Times Magazine story) "The Constitution In Exile" — that it would interpret the Constitution to require right-wing economic policy. A second, and darker, fear was that five Republican-appointed justices would concoct a jury-rigged ruling in order to win a huge battle that its party had lost in Congress — that wildly partisan Bush v. Gore–style rulings would now become regular features of the political scene.
The two fears were, of course, deeply intertwined. What happened, and what nobody expected, was that they diverged. The second fear was decisively refuted. The first is very much alive.

The fearful part is that five justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading — if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce. By endorsing this precedent, Roberts opens the door for future courts to revive the Constitution in Exile.

But Roberts will do it by a process of slow constriction, carefully building case upon case to produce a result that over time will, if he prevails, rewrite the shape of American law. What he is not willing to do is to impose his vision in one sudden and transparently partisan attack. Roberts is playing a long game.

But it would be unfair to attribute his hesitance solely to strategy. Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled. The long-term war over the shape of the state goes on, but the crisis of legitimacy has been averted. I have rarely felt so relieved.