Underpaid Genius

Linda Greenhouse predicted Chief Justice Roberts would lead the SCOTUS in a ‘controlling opinion’ for ACA, back in April.

Linda Greenhouse via NYTimes.com

there are obviously tensions and even rifts within the Supreme Court that don’t map readily onto the one-dimensional 5-to-4 narrative. This is the challenge facing Chief Justice Roberts as he tries to lead the court to an outcome. While I expect the statute to survive, I also have two other predictions. One is that however the case comes out, the chief justice will be in the majority and will write the controlling opinion. I don’t say “majority opinion” because I don’t think there are five justices who will necessarily agree on a common rationale for their agreed-upon result. In addition, or as an alternative to upholding the individual mandate as an exercise of Congressional authority under the Commerce Clause, some may prefer to treat the individual mandate as a tax, squarely within Congress’s taxing power. Others may invoke the “necessary and proper” clause of Article I, Section 8. Consider that a court that spent nearly six months on the strip search case has barely three months before the end of the current term to decide the future of health care.

The chief justice’s concurring opinion in the strip search case, only three paragraphs long, is interesting for a reason beyond what it might suggest about intramural stress. Here is the final paragraph:

“The court makes a persuasive case for the general applicability of the rule it announces. The court is nonetheless wise to leave open the possibility of exceptions, to ensure that we not ‘embarrass the future.’ ”

“Embarrass the future”? The quote, from a 1944 opinion by Justice Felix Frankfurter in a tax case, is usually offered to mean that the court shouldn’t encumber itself by declaring solutions to problems that have yet to emerge. Maybe that’s all the chief justice meant. But John Roberts is both a careful prose stylist and a man acutely conscious of his and the court’s place in history. There are so many other ways of expressing a minimalist impulse than this unconventional use of the word “embarrass” that I have to wonder whether he didn’t have in mind the prospect of institutional embarrassment, and not only in the case at hand.