After Chief Justice Charles Evan Hughes deftly beat back Franklin Delano Roosevelt’s court-packing proposal, FDR said, with grudging admiration, that Hughes was the best politician in the country. “That was hardly the way Hughes would have chosen to be remembered,” writes James Simon in “FDR and Chief Justice Hughes,” “though there was much truth in the president’s remark.”
I doubt Roberts wants to be known for his political skills, either. But in today’s decision, he showed that, like Hughes before him, he’s got those skills in spades.
The decision today is being reported as 5-4, with Roberts voting with the liberals. Akhil Reid Amar, a constitutional scholar at Yale Law, sees it differently. “The decision was 4-1-4,” he said.
Here’s what Amar means: The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn’t. If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid. ”He was on-board with the basic challenge,” said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. “He was on the conservative side of the controversial issues.”
His break with the conservatives, and his only point of agreement with the liberals, was in finding that the mandate was a “tax” — a finding that, while extremely important for the future of the Affordable Care Act, is not a hugely consequential legal question.