Is Justice Roberts a Big Player?

The Supreme Court upheld “Obamacare” because Chief Justice Roberts changed his mind. (It seems that “Obamacare” is no longer a pejorative.)  In this curious situation, a stalwart of the Federalist Society  has become a Big Player in healthcare markets.

A Big Player is a powerful actor who uses discretion to influence a market. In the long run, Big Players are government entities or the creations thereof. They are discretionary actors whose personal discretionary choices supplant known and simple rules. In other words, Big Players substitute the rule of men for the rule of law. The great theorist of the rule of law, A.V. Dicey, said in an important remark that the rule of law “means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government.”

Roberts has become a Big Player, and yet the Federalist Society is against that sort of thing. It is committed to the rule of law. Its attitude to the role of the courts is expressed in a passage from Federalist 78: “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature…. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” But the “judgment” of Justice Roberts in this case seems to be very much an “exercise” of his “will.”

Should we therefore castigate Roberts as a hypocrite or ideologue? I don’t think so.

The problem is not that Roberts secretly wishes to impose his personal will on the law. Indeed, the decision seems to be the most restrained possible. It was hardly an instance of “judicial activism” or “legislating from the bench” given Robert’s presumptive political opposition to Obamacare. The problem arises when sweeping measures such as the Affordable Care Act come before the Court. Such laws are ambiguous. They open up new and unexplored legal territory. And they give discretionary authority to bodies empanelled by the legislature. Obamacare, for example, creates the possibility of “waivers” exempting organizations (“temporarily” we are told) form the provisions of the act.  In other words, sweeping measures such as Obamacare create legal ambiguity.

When an ambiguous measure comes before the Court it is hardly a simple matter to predict what decision the Court come to. The law is big and important; we are all affected by it. But the law is also ambiguous, creating unpredictable rights, responsibilities, prohibitions, and liabilities. The Court is obliged to wade through it all and render its best – and most decidedly unpredictable – decision. Much hangs in the balance, and the Court cannot be relieved of its responsibility once the case is brought before it. The ambitions and ambiguity of the law force the court to play the role of Big Player.

When legislation makes more incremental changes, the judgment of a court in supporting or rejecting the law has a much smaller impact on the lives of the people. It is easier to adjust to small legal innovations than to anticipate and respond to major legal innovations. Even capricious judges exercise little Big Player influence since their decisions can be reversed by other judges or by re-crafted legislation.

But once we allow the political system to generate the sort of grand, highly ambitious, and interventionist legislation represented by the Affordable Care Act, it is no longer possible to avoid Big Player influence. Even Supreme Court Justices become Big Players. In other words, the very existence of such ambitious legislation violates the rule of law. The rule of law is compatible with the limited government, but not the nanny state.

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