The Roberts Court at 10

Federal Power: The Evolving Story of John Roberts and Congress’s Commerce Clause and Spending Clause Powers | Chapter 1


As we noted in our introductory chapter, the story of John Roberts’s first decade as Chief Justice is, at least superficially, a complicated one. No area of the law may reflect the complicated nature of that story better than the scope of federal power under the Commerce Clause and the Spending Clause. Chief Justice Roberts has been championed for casting the critical vote to uphold, in substantial part, federal health care reform in National Federation of Independent Business v. Sebelius (NFIB). Indeed, at the time, CAC celebrated the Court for “put[ting] the law over politics even in the most contentious legal dispute of our times.” But the decision was hardly an unreserved victory: at the same time the Court upheld the individual mandate as a permissible exercise of Congress’s taxing power, the Court invalidated, as written, the statute’s expansion of Medicaid, and Chief Justice Roberts wrote at length about the limits of Congress’s power under the Commerce Clause and the Necessary and Proper Clause.

Now, as we take a look back at NFIB in the broader context of John Roberts’s first decade on the High Court, it seems fair to say that the decision typifies the complicated (and still evolving) story of John Roberts’s legacy vis-à-vis the Commerce Clause and the Spending Clause. Although Roberts may not have the fervor for continuing the states’ rights revolution that his predecessor (and former boss) Chief Justice William Rehnquist did, his views on the scope of Congress’s power under the Commerce Clause and the Spending Clause are nonetheless fairly conservative—indeed, more conservative than he let on at his confirmation hearing. Indeed, one sees in the Chief Justice’s decisions so far a real anxiety about the scope of federal regulatory power and the size of the federal administrative state. Faced with a case of such significant political dimensions that it threatened to compromise the institutional legitimacy and reputation of the Court—not to mention Roberts’s own reputation as Chief Justice—Chief Justice Roberts upheld the ACA’s individual mandate. But what his views will mean over the next decade or two in less politically charged cases remains very much a live question.