The stunning decision by the US Supreme Court to uphold the most controversial part of the Affordable Care Act, the individual mandate to purchase health insurance, was a remarkably subtle bit of legal reasoning.
But it was also a remarkably crafty piece of political maneuvering by Chief Justice John G. Roberts Jr., a strongly conservative George W. Bush appointee who has just handed his Democratic successor a huge victory.
Before I go further, I’ve always have had deep reservations about health care reform, principally that we just can’t afford another huge entitlement program while the existing ones are about to bleed us dry.
But by siding with the four liberal Justices—Ruth Bader Ginsburg, Steven Breyer, Sonia Sotomayor, and Elena Kagan—Chief Justice Roberts may have rescued the Court’s credibility at a time when it has come increasingly under fire for the partisan character of some of its rulings and Justices, notably conservative Antonin Scalia.
The Chief Justice also sided with liberals in a second key decision this week, overturning much of Arizona’s incendiary immigration law, along with fellow conservative Anthony Kennedy, who wrote that opinion.
In health care, the Chief Justice not only sided with the liberals on a key point; he put his own name and the prestige of his office behind the opinion.
And he did so without violating a key conservative principle: that the Commerce clause of the Constitution—that Congress has the power to regulate interstate commerce—has been used too broadly by Democrats to justify a gigantic expansion of government since the New Deal.
Having sided with conservatives on that point, he pivoted and voted with the liberals on what turned out to be a much stronger argument for the government—that the penalty for not purchasing insurance is really a tax. The power to tax is central to Congress’s powers under the Constitution. And individuals can opt out of buying insurance by paying that tax, thus neatly preserving their freedom of choice.
Roberts also voted with the majority that the federal government could not withhold existing Medicaid funds to states that refused to expand Medicaid as the Act requires them to do, thus upholding states’ rights.
Bottom line: Chief Justice Roberts found a way to reject the compulsory aspects of the bill that conservatives hate without overturning the signature act of a Democratic president.
Here’s where politics dovetails with the law. Chief Justice Roberts is concerned that the Court is under fire for several partisan 5-4 rulings, most notably Bush v. Gore and Citizens United, which the Court strongly upheld this week.
A devastating article on Citizens United by Jeffrey Toobin in The New Yorker detailed how the Chief Justice had taken a relatively limited case and broadened it into a huge reversal of decades of campaign finance laws. That article also accused Roberts of acting in a way to benefit the Republican Party.
The Court, like all institutions, has suffered in the court of public opinion, as more Americans think it is acting in a partisan instead of disinterested way.
A recent New York Times/CBS News poll found that only 44% of Americans approve of the job the Court is doing and three quarters say the Justices’ decisions “are sometimes influenced by their personal or political views.”
Don’t think the Chief Justice hasn’t read that New Yorker article or seen those polls.
Here’s what he told Jeffrey Rosen of The New Republic in 2006:
I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions. I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.
Overturning the Affordable Care Act, duly passed by a Democratic Congress and signed by a Democratic president, would have set off a firestorm of protest and more accusations about the Court’s partisanship. It would have dealt a huge blow to the president in the middle of a fiercely contested election.
That was a bridge too far, and Chief Justice Roberts figured out another way to cross the river. In doing so, he clearly gave a Democratic president a gigantic political victory—and saved the reputation of the institution he leads.
Also: Supreme Court endorses Citizens United in a blow to Democrats and President Obama.