Balls and strikes, by @DavidOAtkins

Balls and strikes

by David Atkins

Dave Dayen riffs on a strange catch by Brad DeLong today, who noticed that Scalia refers to Ruth Bader Ginsburg's majority opinion as a "dissent" at least nine times. There's currently an argument about whether Scalia's reference to dissent in this case was an error, or if he refers only to Ginsburg's minority view on the legitimacy of the Commerce Clause to decide the point.

Whether or not Roberts did flip at the last minute, however, there is still the issue of why he separated himself from his fellow conservatives in the first place.


Without that shift – if there was one – the entire Affordable Care Act would have been struck down, based on a reading that the individual mandate was both not a valid regulation of interstate commerce and also essential to regulating health care, such that the entire framework of the law, including Constitutional provisions, would have had to have been struck down. The claim for this is that the act’s other statutes would not have been enacted without the mandate, an effort by the Court’s four dissenters to read the minds of the White House and Congress.

But I’m more interested in what, if anything got to Roberts. Was Scalia’s opinion initially the majority ruling? Why did Roberts flip? It’s worth pointing out that Roberts’ opinion does invalidate the mandate under the Commerce Clause. That is a brand new piece of jurisprudence, and there are widely varying opinions from legal scholars over how much that will matter, i.e. whether it merely confines itself to the peculiar case in health care of “regulating inactivity” or not. So it could be that Roberts is chipping away at progressive governance post-New Deal and setting limits on federal power by inches at a time, or that he just couldn’t contemplate the invalidation of the entire law and opted for judicial restraint, or that he was moved by the impending attack on the legitimacy of the Court in the event of taking down the law, or even that he wanted to preserve a forced market for insurance companies and stave off the only option in the event of a full elimination of the law, a move to publicly-dispensed universal health insurance.
If Scalia did not make an error in calling the majority opinion the "dissent" in this case because he was referring solely to the issue of the commerce clause, then it's possible that Roberts never did flip.

Regardless, it's impossible to know what actually went through Roberts' mind in deciding against his fellow conservatives here. It's important to remember that people in positions of power are still people in all their glorious complexity, and I have cautioned before against applying the Snidely Whiplash theory of politics to everything under the sun. It could be that he was playing a long game, adding a bulwark to the Court's legitimacy while giving the Court more power to invalidate federal laws in the future. But that argument is as persuasive to me as other arguments involving eleven-dimensional chess. Besides, if Roberts were sneaky enough to see that angle, why not convince at least Justice Kennedy of the same? Why, if DeLong is right, change his mind at the last minute?

I think it's likeliest that Roberts' key concern was for the legitimacy of the Court as an institution. But if that is the case, why (if DeLong is correct) switch at the last minute? The issue of Court's legitimacy would have been obvious from even before the Court took up the case.

I suspect that many books will be written about how and why this decision came down as it did. But it seems likely that one of two things happened: either last-minute pressure swayed Roberts against his own judgment, or a more complicated and deliberative man than Kennedy and the three conservative firebreathers burnt a lot of midnight oil weighing the competing interests of his conservative ideology and the Court's legitimacy and ultimately decided in favor of preserving the Court as an institution.

Either way, one thing is undeniable at this point: there is a difference between Roberts and Alito, and Democrats were right to put up more of a fight against the latter than the former. This was a momentous case with high stakes, and the balls and strikes were called correctly at least this once.