Judicial Politics, Chief Justice Roberts's Legacy, and the National Federation of Independent Business V. Sebelius Decision

By White, Brandon | Justice System Journal, September 1, 2012 | Go to article overview

Judicial Politics, Chief Justice Roberts's Legacy, and the National Federation of Independent Business V. Sebelius Decision


White, Brandon, Justice System Journal


In one of the most anticipated decisions in its history, the Supreme Court upheld the constitutionality of the Patient Protection and Affordable Care Act (hereafter, the PPACA) in National Federation of Independent Business, et al. v. Sebelius, Secretary of Health of Human Services, et al, 2012 (hereafter NFIB v. Sebelius). Most legal analysis has focused on the majority opinion's decision to find the PPACA's individual mandate unconstitutional under the Commerce Clause but constitutional under the Taxing Power. This decision fundamentally changed constitutional jurisprudence concerning both the Commerce Clause and the Taxing Power. While there is no question this attention is warranted, what has been lost in discussion of the case is how Chief Justice John Roberts's landmark majority decision is an excellent example of pushing the issue back into the political arena. Moreover, the concurrence by Justice Ruth Bader Ginsburg and the dissenting opinion by Justice Antonin Scalia engage in a level of judicial activism that appears to have driven the chief justice to craft an opinion that seeks to preserve his view of the Supreme Court.1 The majority opinion is concerned with the role of the Supreme Court within the political system and as an impartial institution, and potentially with his own legacy as chief justice. Accordingly, the NFIB v. Sebelius case should be viewed in the vein of Marbury v. Madison (1803), both of which serve as examples of strategic judicial politics.

In the diverse literature on judicial politics, strategic behavior is seen as a necessary first step in maintaining the institutional legitimacy of the Supreme Court (Epstein, Knight, and Martin, 2004:178). The other approaches to explain judicial decision making, the attitudinal model and the legal model, must be examined and discarded in the instance of the majority opinion in NFIB v. Sebelius. The legal model contends that the law trumps politics before the Supreme Court and that justices are bound by their own precedents and other legal precepts (Richards and Kritzer, 2002). Since there were no direct precedents applicable to this case, the legal model is an inadequate explanation of the Court's decision here. All of the opinions in the case acknowledge that both the individual mandate and the Medicaid expansion raised new issues that the Supreme Court had not addressed before.2 As a result, there was no law to constrain the justices at the outset.

The attitudinal model, on the other hand, asserts that the Supreme Court is seen as a group of justices who use the cases to advance their own public-policy preferences without regard for other institutions and even the law itself (Segal and Spaeth, 1993). This Legal Note asserts that the concurring and dissenting opinions in NFIB v. Sebelius are a perfect example of the attitudinal model. For example, in the concurring opinion, Justice Ginsberg acknowledges the revolutionary nature of the individual mandate when she writes: "To make its chosen approach work, however, Congress had to use some new tools, including a requirement that most individuals obtain private health insurance" (NFIB, at 2612). This new tool suggested by Justice Ginsberg is exactly what the dissenters saw as the problem: "These parts of the Act [provisions concerning the individual mandate and the provisions concerning the Medicaid expansion] are central to its design and operation, and all the Act's other provisions would not have been enacted without them" (NFIB, at 2643). Consequently, both the concurring and dissenting opinions engage in judicial activism. The concurring opinion engages in activism for asserting that the necessity and uniqueness of the problems posed by health care justify the use of this new tool. Appositionally, the dissenting opinion asserts, without any proof, that Congress would not have enacted the other parts of the law without the two major provisions found to be unconstitutional, while it goes out of its way to overrule a legislative enactment by a coequal branch. …

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