Welcome to the Roberts Court: How the Chief Justice Used Obamacare to Reveal His True Identity
In 2006, at the end of his first term as Chief Justice, John Roberts told me that he was determined to place the bipartisan legitimacy of the Court above his own ideological agenda. But he recognized the difficulty of the task. “It’s sobering to think of the seventeen chief justices,” he said. “Certainly a solid majority of them have to be characterized as failures.”
Specifically, he was concerned that his colleagues were too often handing down 5-4 decisions that divided along predictable party lines, which made it hard for the public to maintain faith in the Court as an institution that transcends politics. Roberts pledged to try to persuade his colleagues to avoid party line votes in the most divisive cases. Roberts said he would embrace as his model his judicial hero, John Marshall, who sometimes engaged in legal “twistifications,” to use Thomas Jefferson’s derisive phrase, in order to achieve results that would strengthen the institutional legitimacy of the Court.
In the health care case, Roberts produced a twistification of which Marshall would have been proud. He joined the four liberals in holding that the Affordable Care Act’s individual mandate was justified by Congress’s taxing power even though he also joined the four conservatives in holding that the mandate was not justified by Congress’s power to regulate interstate commerce.