Gonzales: Maybe Roberts will punt today

Could this morning’s big decision be the biggest let-down since Geraldo Rivera broke into Al Capone’s vault on national TV? The man who vetted John Roberts for the nomination to the Supreme Court told CNN yesterday that he expects the Chief Justice to decide the case on “the most narrow grounds possible,” which means Roberts may well urge the court to punt on ObamaCare for now … and put us all through this again in a few years after the mandate has taken effect:

Former Attorney General and former White House Counsel Alberto Gonzales said Wednesday Chief Justice John Roberts may try to avoid the constitutional issues in the fight over President Barack Obama’s health care law and vote to allow the individual mandate in the law to take effect before the courts issue a definitive ruling on it.

“I spent a great deal of time vetting Justice Roberts in making my recommendation to President [George W.] Bush that he appoint Chief Justice Roberts to the court,” Gonzales said on CNN. “One of the traits I most admired about him, and this is very consistent in his judicial decision making, is to decide decisions on the most narrow grounds possible, to not get to constitutional issues you don’t have to in order to dispose of a dispute….So in that respect, I expect Justice Roberts to follow that approach in deciding this case.” …

“That may mean, that he’s going to be pushing the court to perhaps not make a decision on this case, wait until 2015, when the penalties on individual mandate come into play….Perhaps the chief justice is not going to go that way, but I wouldn’t be surprised if he did,” the former attorney general and one-time Texas Supreme Court justice told CNN.

I don’t see this as a likely outcome, but it’s certainly possible.  The court held a two-hour round of arguments specifically on whether the case had “ripened” to the point where the Supreme Court should rule on the merits of the law.  That was widely seen as a hygienic move to pre-empt any notions of a “rush to judgment” if the law got tossed out, but it might be seen as an escape hatch at the moment.

A punt in the form of ruling that the case isn’t yet ripe for Supreme Court review would solve nothing for Roberts, though … unless he plans to retire in the next two or three years.  This case will not get forgotten by the states that filed the lawsuit, and the arguments will not have advanced much further, except to add more concrete examples of abuse of jurisdiction.  The HHS mandate would make a pretty good codicil, and that might come up next year if the court leaves ObamaCare standing, in whole or in part.  Finally, the time to punt this would have been at the certiorari stage when the court agreed to hear and consolidate the various challenges to the law.

Still, it’s a useful reminder that this option remains open to Roberts … and bear in mind Gabriel Malor’s analysis that shows the Roberts Court among the most cautious of modern panels.