Strategy and Tactics in NFIB v. Sebelius

Abstract

This article provides an in depth examination of the strategic judicial maneuvering witnessed in the Supreme Court’s healthcare decision. Through that lens, it is possible to gain a detailed understanding of the doctrinal groundwork that Chief Justice Roberts was laying for future conservative revolutions in the Commerce Clause Power, the Necessary and Proper Clause, and the Taxing and Spending Power. The reason Roberts was able to dramatically read down Congress’s main avenues of regulatory power was not despite the liberal outcome of the case, but because of it. Roberts’s strategic sacrifice in NFIB v. Sebelius suggests an obvious analogy to Marbury v. Madison, however that common and overused metaphor is misleading. Marbury was a unanimous decision. In contrast to Chief Justice Marshall, Roberts was unable to match his deft long-term strategic maneuvering with effective short-term tactics: he could not forge a majority opinion for most of his positions.Understanding Roberts’s actions as sophisticated judicial strategy reveals much about the composition of his preferences. Although Roberts was clearly pursuing legal policy goals, the fact that he was willing to vote to uphold the individual mandate without a clear majority for his conservative legal innovations suggests that his dominant interest was not doctrinal. Rather, Roberts’s driving aim was to protect the institutional legitimacy of the Court from the appearance of partisan decision-making immediately before a presidential election. Roberts’s evident strategic action is an ideal vehicle for understanding his federalist constitutional agenda, judicial strategy more generally, and its relation to doctrinal development.