The Switch in Time that Saved an Illegal Fine

Ongoing allegations that Chief Justice John Roberts based his deciding vote in NFIB v. Sebelius on his vision for the Supreme Court’s political reputation—rather than the Constitution—harkens some historical comparisons. Some commentators approvingly compare the Chief’s savviness of John Marshall; unfortunately, it would appear that Chief Justice Charles Hughes is a more apt comparison.

First, the Marshall comparison. In the landmark 1803 case of Marbury v. Madison, Chief Justice Marshall faced two unsavory alternatives: rule against the hostile President Jefferson and watch the president humiliate the Court by ignoring its ruling, or reluctantly give Jefferson the ruling he wanted. Marshall shocked everyone by ruling in Jefferson's favor, while (of far greater historical significance) announcing that the Court had assumed a brand new power: judicial review, marked by the ability to strike down laws the Court deems unconstitutional. This is now regarded as the judiciary's strongest constitutional power, and Jefferson did not protest it because the Court gave him what he wanted.

Daniel Epps argues in The Atlantic that Roberts demonstrated similar initiative: rather than play into the administration’s ongoing criticisms of the Court’s supposed Republican bias and risk damaging its reputation and influence, Roberts “juked” by giving Obama the ruling he wanted. However, Roberts rejected the administration’s primary contention that the Affordable Care Act comports with the Commerce Clause, and hung his hat instead on the Taxation Clause—thereby arming Republican critics with election year ammunition that Obamacare amounts to a tax increase.

It is a compelling theory…but it ultimately misses the point that Roberts’ switch resulted in a monumental expansion of federal regulatory power. The Court’s opinion that the individual mandate violated the Commerce Clause certainly restores some measure of sanity to that body of law, but the expansion of the Taxation Clause renders the Commerce Clause largely moot. After all, if Congress can simply bypass the Commerce Clause by regulating activity through the guise of taxation, then who needs the Commerce Clause? The Taxation Clause apparently (under this ruling, at least) offers Congress all the legal justification it needs.

Furthermore, it appears that Roberts ruled in large part to pacify an administration that appears intent on bullying the Supreme Court into obedience. After all, President Obama has bullied the Court during press conferences and (infamously) during his State of the Union address. And it seems to have worked.

President Obama has treated the Court with the same hostility as Franklin D. Roosevelt, when the Court overturned parts of his prized New Deal legislation. Roosevelt famously denounced the Court as imposing a “horse-and-buggy” interpretation of the Constitution on the American people. Infamously, Roosevelt threatened to pack the Court with additional justices who would implicitly cast favorable votes. This caused the Court to unexpectedly rule in favor of the New Deal legislation, in what history came to recall as “the switch in time that saved nine.”

However, a closer look at the historical record shows that Congress did not support the court-packing bill and would not have passed it. Moreover, the “switch” caused harm to our Constitution that has still not been repaired to this very day. Therefore, for all intents and purposes, the “switch in time” was an unnecessary measure that caused immeasurable constitutional damage.

Similarly, the Roberts Court faces no clear and present danger of becoming irrelevant. The threat of criticism? Obviously. But newsmakers only criticize relevant institutions, and facing criticism is the price of making difficult decisions about controversial laws.

How ironic is it, then, that the Court now faces an avalanche of criticism? Roberts’ apparent worry of being criticized for playing politics has come true—it just comes from the right, rather than the left. The Chief apparently did play politics, and the American public is calling him on it. Too bad that our Constitution also fell casualty to this game.

Thus, the effects of Roberts' switch in time: (1) growing allegations of the Court's politicization; (2) evidence that the President can bully the Court into obedience; (3) implementation of a wildly unpopular law; and (4) a massive expansion of the Taxation Clause that may haunt American jurisprudence for decades to come.

Along with an illegal fine.

Ryan T. Darby practices civil and public interest law in San Diego.