—Stephen M. Feldman
The Roberts Court is unequivocally conservative. It can even be fairly categorized as neoconservative, as I argue in my forthcoming book, Neoconservative Politics and the Supreme Court: Law, Power, and Democracy. Four of the justices—Thomas, Scalia, Alito, and Roberts—consistently adopt positions that harmonize with neoconservative writings. In this blog post, I am not concerned with distinguishing neoconservative from other conservative views (and they often overlap). Instead, I ask the question: Did this conservative Court, especially Chief Justice Roberts, betray conservative principles in National Federation of Independent Business (NFIB) v. Sebelius, which upheld the constitutionality of the Patient Protection and Affordable Care Act?
Undoubtedly, liberals will celebrate and conservatives will denounce the ultimate conclusion: Most of the Act is constitutional, including the individual mandate, which requires many uninsured individuals to purchase health insurance. Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan, held that the mandate is a constitutional exercise of Congress’s taxing power. Yet, significant parts of Roberts’s opinion are extremely conservative statements of legal doctrine. I will give one example, though there are several. Most important, Roberts bolsters the conservative doctrine delineating the scope of Congress’s commerce power. Roberts reaffirms that United States v. Lopez, a conservative decision from 1995, provides the doctrinal framework for determining the constitutionality of congressional acts under the commerce clause. Lopez allows Congress to regulate in three categories: the channels of interstate commerce, the instrumentalities of interstate commerce, and “activities that substantially affect interstate commerce.” The substantial-effects category is potentially the broadest, but rather than considering its applicability, Roberts introduces distinctions that render it inapposite in NFIB. While Ginsburg and the other liberals maintain that the Act reasonably regulates decisions having substantial effects on the health care market, Roberts suggests that even if the government could show substantial effects, the Act would still be unconstitutional. He explains that Congress can only regulate activity, but here, Congress creates activity where only inactivity existed before. Some people do not want to purchase health insurance, but Congress seeks to use its commerce power to force them to do so. This, Roberts concludes, Congress cannot do. Such formalist reasoning—sharply distinguishing activity from inactivity, and regulation from creation—is reminiscent of conservative holdings from the pre-1937 Court.
Nevertheless, Roberts’s legal arguments probably are not mere pretexts for his political preferences. Generally, the justices’ arguments are sincere, though simultaneously, the justices ordinarily interpret legal texts consistently with their politics. Given this, Roberts’s opinion is politically astute. By voting with the four liberal justices to uphold the Act, Roberts shields the Court from accusations that it is unduly partisan. Yet, he also furthers the conservative view of Congress by shrinking congressional power to an even greater degree than before. From now on, when Congress exercises its commerce power, the government must satisfy not only the conservative Lopez doctrine but also the new formalist requirements of NFIB. Indeed, as Ginsburg noted, because Roberts found the Act constitutional pursuant to Congress’s taxing power, he should not have even discussed the commerce power. Roberts might have given liberals an important political victory in NFIB, but in the end, it might be pyrrhic. His doctrinal reasoning could have conservative implications for many years to come.
Stephen M. Feldman is the Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science at the University of Wyoming. He has published several books, including Please Don’t Wish Me a Merry Christmas: A Critical History of the Separation of Church and State (NYU Press, 1997); Free Expression and Democracy in America: A History (University of Chicago Press, 2008); and American Legal Thought From Premodernism to Postmodernism: An Intellectual Voyage (Oxford University Press, 2000). Professor Feldman’s new book, Neoconservative Politics and the Supreme Court: Law, Power, and Democracy will be published in December 2012 by NYU Press.