“It’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told Kyle Hawkins, the Texas solicitor general, on Tuesday.
This is a case where originalism and textualism, both conservative legal theories that often lead to similar results, clash.
A textualist would say that Congress’s intent does not matter and should not matter. An originalist would say intent is of overriding importance.
Given that Roberts is well known as a textualist, we are left to wonder what role he will play in the coming years. If anything, he seems to have just signaled that ideology is less important to him than practicality.