Roberts Invited the Court-Packing Fiasco

By Michael Brendan Dougherty

Wednesday, October 14, 2020

 

The history that Democrats tell themselves about Franklin D. Roosevelt’s attempt at Court-packing is that it worked after all, because it acted as an effective threat. The Court had been striking down a variety of New Deal programs FDR believed essential to national recovery from the Great Depression. The administration convinced itself that a Republican-dominated Court would destroy them. And they concocted a pretext for their ideologically motivated expansionism: “overcrowded federal court dockets.”

 

FDR’s bill for judicial reform went down as an embarrassing legislative defeat and example of overreach for the president. But almost immediately, a series of rulings beginning with West Coast Hotel v. Parrish seemed to demonstrate that Justice Owen Roberts had changed definitively from a swing vote that often went against the president’s programs to a swing vote in favor of them. Justice Roberts, consciously or not, was saving the Court from the resentment of FDR and the populace at large, it is explained.

 

I wonder if the drama can be recapitulated today, as kabuki theater. It would be staged to smooth over the intra-coalition politics of the Democratic Party. Joe Biden is against Court-packing and ran against it. He refuses to say whether he endorses it, because it’s incredibly unpopular. Less than a third of respondents told Pew they believed the Supreme Court was dominated by conservatives. But influential progressives in the House and particularly in prestige media are for Court-packing. By making a fuss about Court-packing, and then having Senate Democrats talk incessantly about the threat of a highly-unlikely-to-succeed challenge to Obamacare, Democrats can claim to have successfully threatened the conservatives on the Court. By doing this, they pull the party back from the intellectuals urging on a fateful and unpopular Court-packing scheme that would derail the party’s more pressing agenda items.

 

There’s only one problem. The play is running in reverse. A doubtless very different Justice Roberts has been trying to save the Court’s reputation among Democrats for a decade now. The political drama around and within the Amy Coney Barrett confirmation hearings demonstrates that this gambit has failed. John Roberts’ attempt to shore up the legitimacy of the Court has backfired, inviting the very escalation it was calculated to avoid and making him a figure of ridicule among those who would otherwise admire him.

 

When the question of whether it was constitutional for the federal government to use the Affordable Care Act to compel citizens to purchase a health insurance policy or face a penalty came before the Supreme Court, it came as the chief legislative accomplishment of the first term of the first African-American president, the most popular political figure to emerge in American life since Ronald Reagan. It came with endless blogposts at The Washington Post saying that the whole structure of the Affordable Care Act depended on the enforceability of this mandate and its fines. It also came as the product of humiliating political horse-trading and promiscuous expansions of the authority of HHS over American life – rife with embarrassing drafting errors (a problem for textualists!) and backed by the curious argument that the federal government’s power to regulate interstate economic activity granted the government the power to regulate and punish a very specific form of individual economic inactivity.

 

Roberts wrote the opinion that vindicated the law, one that everyone else on the Court (and many outside) seemed to disdain. He rewrote the penalty as a tax. He just pretended that something the government probably couldn’t do under the Constitution – compel individuals to purchase items – was something else entirely, levying a tax. He did this to preserve respect for the Court among Democrats. And maybe he hoped that this act of “judicial modesty” would encourage Congress to take up its own constitutional role and defer fewer questions to the Court.

 

A few years, elections, and regular changes later, and what is the result? The mandate/tax was reduced to zero dollars. The experts saying it was an inseparable part of the logic of the Affordable Care Act are publicly recanting. A substantial slice of elite opinion is now for Court-packing to smash Republicans, something they would not have considered at the time of Roberts’ ruling. And the very likely next justice on the Court, Amy Coney Barrett, is being questioned about the remarks she made in 2017 disparaging Roberts’ decision.

 

Describing her mentor Justice Scalia’s view, Barrett wrote, “it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result” and seemed to endorse the assessment that Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

 

Roberts could have separated the individual mandate and struck it down, remaining faithful to both his convictions about the Constitution and his philosophy of judicial modesty. Democrats would have yelped, and indeed, Obama may have made the Court a focus of his ire. But Congress either could have sought some other mechanism to accomplish the same end, or it could have lived with the result and discovered years earlier that their legislation could accomplish its most important goals without transgressing the Constitution.

 

Instead, by advertising his ability to be swayed to preserve the good opinion of Democrats, he dramatically incentivized Democrats to writhe around like an Italian soccer player when given slightest brushback and threaten the judiciary like FDR. Now elite media fills up with lamentations about the most right-wing Court ever, even as that Court’s “right wing” imposes part of the unpassable Equality Act by rewriting LBJ-era legislation.

 

Roberts’ attempt to gain respect for the Court has backfired. Which should remind us to anticipate paradoxical effects. Barrett’s debut on the Court will be met with the rending of Handmaid garments, but we may look back on it in the future and see it as the start of progressives learning to accept the primacy of Congress in the American tradition, and recall that the Constitution is also their friend if they will let it be one.