Surprisingly nearly everyone – especially CNN – the Supreme Court upheld the most controversial aspect of President Obama’s historic health care reforms: the individual mandate. It’s incredibly good news for Obama, Democrats, progressives, Rhode Island (which is already well into the process of implementing it) all the uninsured and under-insured Americans (like me!), the country and its economy.
The hero today, though, is a conservative.
Even more surprising than the outcome is that Chief Justice John Roberts, a George W. Bush appointee to the bench, broke ranks from his fellow conservatives and wrote the majority opinion that upheld the individual mandate. It’s being called the John Roberts Moment.
According to the New York Times, Roberts’ judgment was in part a recognition that the court has “a general reticence to invalidate the acts of the Nation’s elected leaders.”
And ironic comment, given that the Roberts Court is best known for invalidating the acts of the Nation’s elected leaders!
But Roberts, more than the rest of the SCOTUS, was taken to task for exercising judicial activism and overturning precedent with the Citizens United decision. In fact, NPR quotes Rhode Island’s own Senator Sheldon Whitehouse admonishing the court for its lack of logic on Citizens United in an article largely critical of Roberts:
But critics of the court say it took a narrow question — whether a TV-on-demand documentary about Democrat Hillary Clinton could be shown in the weeks leading up to the 2008 presidential primaries — and answered it by vastly easing restrictions on corporate campaign spending.
“The court got way, way, way ahead of its skis here,” says Sen. Sheldon Whitehouse, a Rhode Island Democrat. He has filed a friend of the court brief demanding that the high court reverse its Citizens United decision.
“It was a decision they were so eager to make, but now I think they’re embarrassed by the wild discrepancy between the world as they presumed it in their written decision and the world as we see it around us, post-Citizens United,” he says.
Maybe John Roberts realized that the winds were turning on his court’s quest to remake the country in the mold of the strict Constitutionalists?
It wouldn’t be the first time that Roberts allowed perception to dictate how the High Court determined a decision. Here’s a excerpt from Jeffrey Toobin’s New Yorker article about the Citizens United decision.
“Roberts didn’t mind spirited disagreement on the merits of any case, but Souter’s attack—an extraordinary, bridge-burning farewell to the Court—could damage the Court’s credibility. So the Chief came up with a strategically ingenious maneuver. He would agree to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument, in the fall. For the second argument, the Court would write new Questions Presented, which frame a case before argument, and there would be no doubt about the stakes of the case. The proposal put the liberals in a box. They could no longer complain about being sandbagged, because the new Questions Presented would be unmistakably clear. But, as Roberts knew, the conservatives would go into the second argument already having five votes for the result they wanted. With no other choice (and no real hope of ever winning the case), the liberals agreed to the reargument.”
That’s not to say that Roberts allowed his court’s legacy to trump his reading of the law in this case, but just to point out that even Supreme Court justices play a little politics.
“Maybe John Roberts realized that the winds were turning on his court’s quest to remake the country in the mold of the strict Constitutionalists?”
Or maybe he took it as an opportunity to roll back the Commerce Clause? www.slate.com/articles/news_and_politics/scocca/2012/06/roberts_health_care_opinion_commerce_clause_the_real_reason_the_chief_justice_upheld_obamacare_.single.html
“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”
— Felix Frankfurter
I think that Jonathan Chait (nymag.com/daily/intel/2012/06/john-roberts-saves-us-all.html) has it about right: Roberts was worried about delegitimizing the court, if the majority opinion overreached on the Commerce Clause in the way that Scalia, Alito and Roberts (and, apparently, Kennedy) would have preferred. So he allowed ACA to stand — but not, importantly, on the basis of the Clause. There is nothing in this decision to make us think that Roberts isn’t still a part of the ‘Constitution-in-Exile’ movement.
He just happens to be an infinitely more patient member of that movement than some of his colleagues.
So this decision today is a win, but the bigger battle is yet to come. And the ruling on Medicaid is actually really unfortunate. The ability of Washington to use federal funds as a stick as well as a carrot has been critical in all sorts of policy realms — civil rights, environment, etc.
For those of us on the left, it remains absolutely vital to engage in this bigger battle in the best way we Americans can — the ballot box.
What evidence do you or Chait have that Robert’s decision was due to some sort of behind-the-scenes political calculation to bolster the future of the Supreme Court, or that it was anything other than a simple judicial opinion? Absolutely none. You do everyone on the Court a disservice and undermine the integrity of the legal system with this kind of baseless speculation.
Chait’s statement that “This is a bizarre and implausibly narrow reading — if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce.” is unbearably ignorant from a legal perspective. None of the Justices said anything even remotely of that nature in the opinion. It’s like he didn’t read the opinion at all, or has no regard for the actual stated basis or legal reasoning of the decision.
It is a safe bet that Roberts conferred with some of the country’s most influential health insurance CEO’s and hedge fund managers, and this decision is what they all came up with as having the best strategic fit; considering all variables.
Though I can understand the temptation to speculate on why Justice Roberts voted differently from his right-wing colleagues, I basically agree with RTW that it isn’t too productive to so speculate and to try to read into this decision too much about judicial philosophy going forward. More important is what to do about making the imperfect law better. Republican plans to schedule a vote to “repeal” is silly grandstanding, we know it could never pass this Congress. But health care costs are rising too fast and there needs to be discussion of this: for suggestions: ban prescription drug ads on regular TV; cap medical malpractice awards and simplify procedures after medical errors; give more incentives for medical folk to work on salary instead of fee-for-service that encourages unnecessary services; more incentives for healthy behavior – e.g. walk more, drive less (though Congress is passing a bill to do the opposite!); tax unhealthy food like sugary soft-drinks and also tobacco to get less of it; promote birth control so less people have kids they don’t want, can’t afford and won’t take care of; and more.
When he was first appointed to the chief justiceship,
some of the papers thought that we should get to know him better.
The dreaded backgrounders ensued.
Man, what a douche.
I don’t care how well he tests.
Howdy Doody sans freckles…
A true leiderhosen douchebag.
To answer Right To Work,
The evidence that this is a political calculation comes from the fact that this court has made one political calculation after another. The fact that Scalia has written in his book that he is not really all that concerned about his previous beliefs would be shocking if it weren’t par for the course. Wel all know that if this were 1993, and the Heritage Foundation were pushing (which they did) the individual mandate, and it landed in the Supreme Court, that Scalia, Thomas (and not yet to be judges) Alito and Roberts would agree to the premise under the Commerce Clause. Since day 1, this court has behaved political actors. Roberts did make a decision that pleased liberals and not conservatives in this case, that is true. But one case, no matter how important, does not undermine years of indication that the current state of conservative ideology is more pertinent to the Robers court than a firmly held belief system. That is the epitome of an activist court.