Home / General / <i>NFIB v. Sebelius</i> and Judicial Decision-Making II: The Law Mattered?

NFIB v. Sebelius and Judicial Decision-Making II: The Law Mattered?


The core of Mark Tushnet’s three part explanation for John Roberts voting to strike the ACA at oral argument and then voting to uphold it is provocative from a different direction than one might expect, at least if you know Tushnet’s work. Tushnet speculates that Roberts simply wasn’t persuaded by the legal arguments made by the eventual dissenters:

As he and his law clerks worked on the tax issue, the Chief Justice discovered that the opinion “wouldn’t write.” He couldn’t come up with an account of the tax power — persuasive to him — that would invalidate the ACA. Perhaps his difficulty in getting an opinion that “would write” was influenced by institutional concerns about the long-term standing of the Court, or somewhat different institutional concerns about his ability to pursue a conservative legal agenda on matters more important to him over the long run. And, though less plausibly, perhaps these institutional concerns came to have more salience as liberals mounted their post-argument challenges to an anticipated decision invalidating the ACA. But, I would guess, those things operated — if they did, and I’m skeptical — well below the surface. Mostly, the Chief Justice found that the opinion wouldn’t write.

On this view, the Chief Justice didn’t “switch” his vote, because he hadn’t been firmly committed to the view that the ACA couldn’t be defended under the tax power. Once he indicated his view on the tax issue, the rest of the opinions fell into place. The four now-dissenters assembled their separate contributions into their joint dissent and tacked on some discussion of the Chief Justice’s new position.

There are variants based on whether Roberts assigned the original opinion to himself or intended it to be a Cooper/Gregg/Casey-style joint opinion, but the bottom line is the same: the law mattered more than you might think. One crucial point he makes is particularly powerful. To those of us who wrote off the idea that the potential criticism of liberals a significant factor because it was 1)expected , and 2)had never stopped him before, Tushnet argues that the same logic applies to institutional pressures more broadly. Whatever concern Roberts had for the legitimacy of the Court, these concerns should have been the same at the conference vote as they were a month later.

Of course, this doesn’t mean that “the law” was the only variable that mattered; as Tushnet suggests, you can’t separate out the fact that he found out that the opinion “wouldn’t write” from the pressures on the court. More cynically, one could note that one logical place he could have taken his opinion — holding the mandate unconstitutional but rejecting the self-refuting severance argument made by the dissenters — would have been the worst possible outcome for Republican interests. But I find myself surprisingly persuaded that the most straightforward legal realist explanation won’t quite write.

The real lesson here, I think, is once again Graber’s point that it’s impossible to scientifically separate “legal” and “political” and “strategic” factors. Accepting the such categories are oversimplified, however, I think that NFIB actually contains illustrations of how other factors explain Supreme Court votes as well:

  • Attitudinal (“High Politics” Division):  Breyer, Ginsburg, and Thomas.   Breyer is the Court’s most consistent advocate of broad construction of federal power, Thomas its most consistent advocate of a neoconfederate one.   All three, in Raich, were willing to apply their principles against what one would assume are their immediate policy and political preferences.   It’s possible that Sotomayor, Kagan, and Alito will fall into this category as well, but we lack the necessary information.  This isn’t “apolitical” judging.  For obvious reasons, given that state governments have to run balanced budgets and are more easily bought off by powerful interests conservatives are more likely to benefit from decentralized power.   But there’s a difference between applying a politically-derived principle when it conflicts with your immediate policy preference and just refusing to apply the principle when there’s an exception.
  • Attitudinal (“Low Politics” Division):  Kennedy and Scalia.  As Raich demonstrates, their theory of federal power would seem to be “a law passed pursuant to the commerce clause is constitutional if Justices Kennedy and Scalia like the law and unconstitutional if they do not.”  As Ginsburg so beautifully noted, Scalia’s arguments about the necessary and proper clause in Raich are a particular embarrassment for his self-image as the Last Principled Judge in America.  Scalia’s performance at oral argument lends further credence to slotting him in this category.
  • Strategic:  Breyer and Kagan joining Roberts for the Medicaid expansion argument.  It’s pretty obvious to me that Obama’s former solicitor general and the Court’s most consistent advocate of federal power would, if voting their sincere preferences, have joined Ginsburg and Sotomayor in upholding the Medicaid expansion in its entirety.  But there were already five votes to rule at least some of the exercise of federal spending power unconstitutional.    By joining Roberts, Breyer and Kagan presumably 1)helped secure what was by far the better of the two remaining possible outcomes, and perhaps 2)also cemented Roberts’s decision to join the more liberal faction to uphold the rest of the law.   (This, at least, is what Stevens and Blackmun did in Casey, immediately joining every part of the Kennedy/O’Connor/Souter plurality that they could stomach.)

If we assume that Roberts switched his vote largely because of legal factors, we can see examples of major factor that influences judicial decision-making in this case.

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  • Richard

    In other words, human beings, even Supreme Court justices, are complicated and cant be reduced to stick figure caricatures by their supporters or their opponents.

    • Joe


      This also is how I analyze the “bully pulpit” stuff. It is a factor, but only as part of a whole. The law does matter to these people, not just being conservative fascists. Even Scalia and Thomas split for reasons based on the law.

      I might not actually like their views and other factors influence them (thus the horror at talk of ’empathy’ always to me was simply b.s.) but “law” plays a role here.

  • scott

    I don’t know whether Tushnet’s explanation actually applies, but lawyers do run up against this all the time. Sometimes you have tell your client that, yeah, i want to argue for you, but this argument doesn’t pass the straight-face test and I can’t make it in good faith. And sometimes you start out a case thinking one way but, as you get immersed in the facts and law, you realize you can’t justify it to a third party (usually an agency or a court, in Roberts’ case his own professional standards/peer or public opinion).

    • Scott Lemieux

      One limitation of the attitudinal model is that while Supreme Court votes on the merits are largely political because there are usually multiple reasonable arguments, the law certainly has a lot do with what arguments are considered reasonable in the first place.

      • dl

        an important qualification is at least one reasonable argument is almost available to lead a given outcome at SCOTUS. and NFIB v Sebelius shows vividly how quickly an unreasonable legal argument can become “reasonable” if it is needed to sustain an attitudinally desirable outcome.

        sure, the law may have mattered, for one justice out of nine, in one, high-profile vote– but this is, at best, an exception to the rule.

  • C.S.

    I don’t really buy that as an explanation, because the concern about whether or not something “wouldn’t write” didn’t stop Roberts from making his farcical Commerce Clause arguments. I can’t imagine how they could be any worse than what he might have come up with vis-a-vis the Taxing Power.

    • NonyNony

      But questioning the taxing authority of Congress – which is explicitly granted by the Constitution – is a completely different thing from questioning the precedent accrued around the Commerce Clause, isn’t it?

      From my (layman’s) reading of the dissent it reads like the argument against the taxing authority from the 4 dissenters was a bit of semantic word games. That Congress could have that power and they could pass something that did exactly what the PPACA did if they wanted to make the individual mandate a tax and it would work exactly the same way. But since they didn’t actually call it a tax in this bill that they passed, it’s unconstitutional.

      If that’s right, then the difference between the Commerce Clause arguments that Roberts bought and the tax argument that he didn’t is that the CC arguments hit questions of ideology – Roberts agrees with the other 4 conservatives that the Commerce Clause precedents should be rolled back and that Congress shouldn’t have that kind of authority — while the tax argument didn’t. Roberts and the other 4 conservatives all acknowledge that Congress has that kind of taxing authority but the 4 conservatives wanted to declare it unconstitutional anyway because of how the bill was passed.

      I could see someone buying the first but not the second easily actually.

    • L2P

      I can imagine the argument that the ACA penalty isn’t a tax being quite a bit worse.

      The conservative Commerce Clause arguments were merely unsound; we can challenge the logic of them, but you can make a case that does at least hold together and isn’t catastrophic.

      The argument that the ACA penalty isn’t a “tax” is a fiasco. There’s literally dozens of “penalties” in the IRC that are, actually, taxes. There are also literally hundreds of “taxes” in the IRC that are, actually, incentives that only incidentally raise revenue.

      For the love of god. The mortgage interest deduction doesn’t even raise revenue. It’s sole reason to exist is that 80 years ago we got rid of the personal interest deduction, but thought it would destroy the real estate market if we got rid of the mortgage interest deduction. How is that different than the ACA penalty? How is that more related to “revenue” and less related to “commerce?”

      Yes, we can agree that the conservative opinions on the commerce clause don’t hold together. But the conservative opinion on the taxing power is literally a disaster; huge swaths of the IRC would now be questionably constitutional.

      • L2P

        Now that I think about, declaring the IRC unconstitutional might not be a disaster in the conservative playbook, so maybe that was the plan all along.

      • C.S.

        The conservative Commerce Clause arguments were merely unsound; we can challenge the logic of them, but you can make a case that does at least hold together and isn’t catastrophic.

        I disagree. It seems to me that Roberts’ entire Commerce Clause argument is dependent on an analysis of Wickard that wouldn’t pass muster in any 1L Con Law classroom in the country.

        • L2P

          Not that I agree with Roberts’ Con Law analysis, but I try to keep in mind that Lochner was the law of the land for decades. It’s not like the Commerce Clause isn’t controversial and that very intelligent, reasonable legal minds have disagreed with the current consensus. So I tend to think that, although the conservative commerce clause analysis is wrong, it’s not crazy.

          The conservative analysis of Congress’s taxing power, however, is just off the rails. I don’t know where it comes from, and it literally rewrites the book on 90 years of tax law. Without explanation or reason.

          • John

            Lochner wasn’t a commerce clause case. It was a 14th amendment due process “liberty of contract” case. The terrible commerce clause case was Hammer v. Dagenhart (1918), which said, ludicrously, that manufacturing didn’t count as commerce.

            • Scott Lemieux

              Worse than that; it said that a ban on shipping shoes made with chold labor across state lines wasn’t a regulation of interstate commerce!

  • Glenn

    Along the lines of the inseparability of legal and other factors is, to my mind, Roberts’ invocation of the principle that an act of Congress must be construed in a constitutional manner if there is any reasonable way to do so. There is nothing in the Constitution itself that requires such a rule — one could, for example, just as easily argue that the Supremacy Clause demands that acts of Congress be indisputably consonant with the Constitution in order to be upheld, i.e., to make sure Congress stays well within the bounds of constitutionality rather than operating at the outer edge. That the Court has consistently applied (or, rather, at least consistently paid lip service to) the rule Roberts’ states is purely a matter of institutional protection. But it manifests itself in a tenet of “law.” (One that John Yoo, apparently, would cast aside.)

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  • How does any social science model deal with the psychology of one individual? If Roberts was going to vote one way in May and voted a different way in June, how could any poli sci model possibly explain that change — especially since nothing changed in the external world?

    I believe Asimov addressed this in Foundation and Empire. Expecting the Spanish Inquisition is relatively easy, but no one expects the Mule.

  • Quail Runner

    The whole problem with Chief Justice Roberts’ action is not that he sided with liberals, but the fact that he actually rewrote the bill.

    Nowhere in the bill was this characterized as a tax. As a justice, Roberts should have waved a chicken over the bill and come up with a ‘yes’ or a ‘no’.

    Instead he made every effort to try to save the bill by calling the individual mandate what the authors hadn’t. He changed the bill.

    It doesn’t matter which side you come down on with the ObamaCare law, this should scare the shit out of you.

    The precedence that this sets will allow decisions that will not always be in your favor. You may come to regret the liberty that Chief Justice Roberts has taken with this opinion.

    • joe from Lowell

      Nowhere in the bill was this characterized as a tax.

      Words are wind. I don’t care what it is “characterized as.”

      If it walks like a duck, quacks like a duck, and includes a monetary value someone has to pay to the government based on what the IRS decides you owe based on the documents you file on April 15, it’s a tax.

      If Roberts had actually changed something in that bill, that would be one thing. Instead he “characterized” something differently. I really don’t find that all that scary.

      • IM

        Falsa demonstratio non nocet

      • Pithlord

        Roberts expressly said he was changing the law. And he was, because there is a difference between a command backed by a fine and a tax if you don’t do something.

        The test is really what would Congress do if the constitutional rule was pointed out to them. Roberts was right to say the 2010 Congress would have preferred his solution to the dissent’s.

      • Pithlord

        To defend the claim there is a difference: in one case, there is something illegal about not having insurance, even if you are willing to pay the penalty. Now, there isn’t.

    • Oldmtnbkr

      Total layperson here, and haven’t read the ruling. From the news reports, it seems to me the big rewrite is on the issue of Medicaid expansion. What do you lawyers think about this part of the decision?

    • Pithlord

      Judges have always rewritten laws to make them constitutional. Has its problems, but so does throwing out a massive piece of legislation for what almost to a technical violation of a rule not yet announced at the time the legislation was passed.

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