Why Roberts Still Won

It wasn’t supposed to happen like this. Justice Kennedy was supposed to be “the decider”, according to the cover of this week’s Time. Not Roberts, not the conservative workhorse Republicans love and Democrats love to hate. Yet there it is; 59 pages in which Chief Justice Roberts upheld the most liberal social reform since the Great Society. After the echoes of “traitor” and “defector” die down on the Supreme Court’s step, conservatives and liberals alike will recognize the genius of Roberts’ decision. With the Affordable Healthcare Act (ACA) opinion, he ensures a generation of conservative rulings that will come to define his tenure as chief justice.

Roberts’ controlling opinion, as a few have called it, rests as a 4-1-4 decision. The four liberal justices voted one way, and the four conservative justices voted in the opposite. Roberts, and Roberts alone, decided the fate of Obamacare. For every issue of the case, Roberts sided with conservative justices, with the exception of one: the individual mandate as a tax. While that one deviation changed the practical outcome of the case, it amounts to a technicality. He bit at the tertiary argument by Obama’s lawyers that the mandate acts as a tax (Obama never called it a tax, refusing to do so). Roberts’ reluctance to pass the law lies in the language of his decision. He uses beleaguered phrases: “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” Upholding his self-image as an “umpire,” Roberts begrudgingly passed the bill.

Yet his decision, while a bane to Republicans, sets a new baseline for debates on the divison of power between the federal government and the states. Future policymakers will use the terms he has laid out, while the collective conscience of the American people will understand the debate through his rhetorical lens. What is most telling, more so than CNN’s Jeff Toobin’s describing Roberts as “red-eyed and unhappy as he read,” is the first six pages of his decision, a history lesson on the division of power between the federal government and the states. The strong conservative core of his decision will outlast the outcome of this one case. The underlying restriction on the Commerce Clause and the Neccesary and Proper Clause will carry through to future decisions and allow Roberts to limit the reach of government even further. Of course, the law may be repealed, wiping Roberts clean while keeping his conservative thinking alive. Perhaps most importantly, Roberts retains his political capital. Who can call him partisan now? He just passed the defining bill of a liberal president, a law that passed without any conservative support. Today, Democrats see him as a champion of liberal health care rights while Republicans denounce his “betrayal.” Yet in the years to come, when he works to pass every conservative piece of legislation that is argued before his court, Republicans will slowly forget the agony of ACA. Roberts took a gamble and risked a battle today for the war that will last a generation. His legacy will either be defined by this one decision, or by the accumulation of cases over 30 years. Roberts has bet on the latter. I am not accusing him of being partisan, like Ezra Klein does, only for playing the legacy game. Because he is not accountable to anyone (no justice has ever been successfully impeached), he can afford the luxury of planning for more than one election cycle. The Right will curse him today, but he will become the most influential Chief Justice the Right has seen so far. Curtailing the power of the Commerce Clause and the Necessary and Proper Clause in his decision allows Roberts to continue his campaign for limited government unhindered. The fallout from this case will pass, and Roberts will be standing at the front, ready for the next one.