Those words came to mind as I read liberal Harvard law professor Laurence Tribe’s Newsweek column about his most famous students: the current U.S. president and Supreme Court chief justice (aka the “clever wimp)”.
Double-back for a moment to the time a dozen years earlier [than a conversation with then-research assistant Barack Obama] that the young John Roberts—who last month singlehandedly decided the fate of Obamacare—was my constitutional law student. I never got to know him nearly as well as I did Barack. He had taken just one basic course with me, while Barack had taken a basic course and an advanced seminar. Roberts was never my research assistant, and he was but one of more than 200 students with whom I conducted a Socratic dialogue in class.
Still, I found myself thinking about one aspect of that 1977 course as I listened to the Supreme Court’s oral arguments on the Affordable Care Act in March. In that class and others over the years, I had spoken about two well-established legal principles: that Congress can properly use its taxing power to regulate behavior, and that the Supreme Court should make every effort to uphold an act of Congress whenever fairly possible. So I was particularly struck by the chief justice’s questions at the oral arguments about whether it makes sense to insist on calling the act a “mandate” when the only thing that happens when you don’t do what’s required is a modest increase in the taxes you owe to the IRS. Labels might not be decisive, Roberts seemed to be saying: how things work in practice sometimes matters more than what they’re called. That was the moment I started thinking that the chief justice might well cast the decisive vote to uphold the mandate as an exercise of the taxing power, a prediction I made publicly at a time when few others expected either that outcome or that line of reasoning.