Jeff Rosen’s May 4^th column in The New Republic has sparked a lively discussion on this blog, the VC, and elsewhere.  The article consists of two very unequal parts, because Rosen’s wind up is disproportionately long in comparison with his pitch.  He leads off with a critique of Circuit Judge Janice Brown’s concurring opinion in Hettinga v. United States, available here, then lurches into a description of a “Constitution-in-exile movement” said to be made up of judges and think-tank activists hoping to “resurrect” pre-New Deal legal doctrines in order “to dismantle the post–New Deal regulatory state.”

In Rosen’s view, the “Constitution-in-exile movement” has brought about a schism among conservative jurists over an issue Rosen thinks is crucial to one of Chief Justice Roberts’ ambitions:  bringing greater unity to the Court.  That issue is adherence to a philosophy of “judicial restraint” that in Rosen’s opinion characterized an older generation of conservative jurists.  Rosen worries that today, even “relative moderates” may be tempted to abandon that philosophy.

All of this leads Rosen (somehow) to his point:

This [i.e., Florida v. HHS], then, is John Roberts’s moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. Of course, if the Roberts Court strikes down health care reform by a 5-4 vote, then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure. But, by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance.  . . . We’ve seen this script play out before, and it didn’t end well for the Court.

In the course of responding on the VC to Rosen and other liberal commentators, Randy Barnett noted a general trend in the post-argument commentary on Florida v. HHS.    “Ever since the oral argument, progressive commentators have been engaged in a series of rearguard litigation tactics designed to intimidate or threaten the Court with dire political consequences should it fail to uphold legislation that they strongly favor,” i.e., the Affordable Care Act.  As a generalization, this view is supported by plenty of evidence, but Rosen himself has disclaimed any such motive, and in any event I do not think Rosen’s piece meets Barnett’s description.    To the contrary, I do not think one can fully appreciate what Rosen’s piece is really about if one assumes it falls into the category Barnett has identified.

For one thing, the tactics Barnett describes have been deployed primarily to warn the Court away from ruling that the Act’s individual mandate is unconstitutional.  That motive appears most clearly (because it appears most crassly) in Sen. Leahy’s comments on the Senate floor last month.   But even if Sen. Leahy thinks it is possible to sway Chief Justice Roberts’ views on whether Congress has the power to compel individuals to enter into insurance contracts simply by reminding the Chief Justice of his aspirations for consensus-building, does Rosen?   I doubt it.  While consensus-building is a laudable goal, there is no reason to imagine that in order to achieve it, Chief Justice Roberts would compromise his views on the scope of Congress’s commerce power.  Moreover, switching sides on a question involving the scope of federal power under the commerce clause is not likely to create a more harmonious atmosphere on the Court, at least judging from the dissent in Garcia v. San Antonio Metropolitan Transit Authority.

In any event, it is hard to imagine a less likely means of persuading the Chief Justice to uphold the individual mandate (under Rosen’s premise, against his better judgment) than with an allusion to President Roosevelt’s Court-packing scheme by way of a threat.   The Judicial Procedures Reform Bill of 1937 was teed up as a solution for a general problem in the administration of justice at all levels within the federal courts, caused by the inclination of some federal judges aged 70 and older to continue in active service despite the supposedly debilitating effects of their advancing age.  No one denies the cynicism behind the proposal, but that very hypocrisy shows that the Roosevelt Administration was not altogether confident that the American people would back the measure if its real motives were acknowledged out loud.  As events unfolded, these doubts were proven to be well-founded.  Even with his immense popularity and even during the crisis atmosphere of the Great Depression, Roosevelt’s efforts to sell his plan by freely describing its real purpose failed.  The revival of a Court-packing scheme under contemporary political circumstances is merely a liberal fantasy.  Its successful implementation is unimaginable.

So to believe that Rosen hoped to sway the Chief Justice on the individual mandate question, it would be necessary to believe that Rosen undertook the task armed with nothing more than that tattered old scarecrow, Lochner v. New York.    That is difficult to believe, too.  As a critic of Justice Blackmun’s reasoning in Roe v. Wade, Rosen should be presumed to know that a Justice’s views on an issue of constitutional dimension can be impervious to prolonged and frequent Lochnerizing.

* * *

I think there is a more plausible explanation for the “moment of truth” paragraph with which Rosen’s article concludes―an explanation that also might account for the timing and the tenor of the article as a whole, and explain away what otherwise look like non sequiturs in Rosen’s argument.  The explanation is based on the premise that Rosen regards it as a foregone conclusion that the individual mandate will be held unconstitutional, and his real concern is the outcome of the severability question presented in Florida v. HHS.

The Court never has treated severability as dependent upon or subject to a bright line rule derived from the text of the Constitution.  As a result, in sharp contrast with the individual mandate issue, the question of severability in Florida v. HHS provides at least some room for avoiding a 5-4 decision without the need for any Justice to compromise his or her construction of the text.  If the real focus of Rosen’s piece is the severability question, his choice to discuss Florida v. HHS within a framework that depends on an opposition between “judicial activism” and “judicial restraint” cannot be called irrational, even by those who do not consider the “activism/restraint” framework valid.

Naturally, the “room” for working out a consensus among six or more Justices on severability may not be very big.  Still, as I hope to demonstrate in a subsequent post, a supporter of the Affordable Care Act might think it very worthwhile to make an effort along the lines sketched out in Rosen’s piece.  The stakes involved are huge.  At a minimum they include all of the Act’s principal market-distorting apparatus:  the Exchanges, the advance payment of premium allowances, the employer mandate, and so on.  Moreover, while the left’s handwringing over the future of Wickard v. Filburn could be dismissed as hysteria or histrionics, its concern about the outcome of the severability issue is firmly grounded in reality.  More on this topic shortly.