The dissociations of John Roberts: National Federation of Independent Business v. Sebelius and the discontents of judicial supremacy

Abstract

The Supreme Court of the United States often finds itself at the center of political controversies due to the increased judicialization of value and policy matters. These controversies threaten the Court’s legitimacy, inducing the justices to defend their independence to perform the institution’s raison d’être. This dilemma is exemplified in legal challenges to the Affordable Care Act after the U.S. Congress, in 2018, eliminated the tax penalty that was essential to the Court’s rationale for upholding the mandate in a prior case. By interrogating the dissociative reasoning of Chief Justice Roberts’ controlling opinion in National Federation of Independent Business v. Sebelius (2012), I argue that the opinion and its uptake in subsequent challenges epitomize the discontents of judicial supremacy and the ultimate inconstancy of judicially-driven political change. Evaluation of this case contributes to understanding of the practices of legal argumentation and theories of dissociation.