Today’s stunning ruling, in which Chief Justice John Roberts joined the court’s four more liberal members to devise a way to make the Affordable Care Act constitutional should really not come as a surprise. Not if you take a step back from today’s political rhetoric and realize that the court is the branch of government that must take the long view.
The chief justice, while an equal among nine, also institutionally and personally carries the responsibility to preserve the reputation of the court. And Roberts, who clerked for the late Chief Justice William Rehnquist, one the most conservative justices in court history, is always cognizant of the delicate balance the court must maintain.
The great irony is that the many of the prominent Democrats praising the ruling today voted, as U.S. senators against the confirmation of Roberts as Chief Jusitce in 2005. The list includes President Obama, Secretary of State Hillary Cinton as well as Charles Schumer, Harry Reid of Nevada and Richard Durbin of Illinois.
This is what Roberts wrote, a primer on the roles of each branch of government:
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
While Roberts was unable to deliver a majority opinion in this very complex case, he did find a way to honor conservative principles but not thrust the court into the middle of a vicious political and policy debate that would only tar it as well. His plurality opinion is a deft compromise by a court that realizes the danger of usurping the power of Congress, especially to overturn a law that, while very flawed, is the result of decades of discussion, indeed started by Richard Nixon, about how to reform the nation’s insurance system for health care.
So he crafted a strategy that found that Congress and President Barack Obama went too far in extending the commerce clause to require individuals to purchase health insurance. This the broccoli argument — that if you upheld this health care law, the federal government could require you to not only eat broccoli, but buy a Prius and use CFL light bulbs. The decision Thursday supports that populist argument.
But Roberts saved the law by siding with four liberal justices to find that the requirement of buying insurance was really a tax. And, as a tax, Congress had the power to impose it.
It wasn’t that much of a stretch. The law is written as a tax, as any penalty would be reported on an individual’s tax returns and would be paid to the IRS. It’s just that Democrats and Obama — dishonestly and unfortunately — didn’t want to call it that for partisan political reasons.
It is, however, one of the arguments the administration made in court. And, it was a question by Justice Sonia Sotomayor that might have sealed the deal for Roberts.
Sotomayor asked Paul Clement, the highly regarded attorney for the 26 states seeking to overturn the health care act, whether it would be permissible for the court to call it a tax, one that people who had insurance didn’t have to pay.
“The government might be able to do that,” said Clement, who won universal praise for having turned in a better performance than Donald B. Verrilli Jr., the solicitor general, during the hearings.
That answer was exactly the open door Roberts needed to craft a ruling that honored the individual liberty argument, but didn’t gut the law.
Roberts, of course, is not the only justice to realize the significance of the case to the court itself. Even the dissents, on first read, are muted and much less vitriolic that ones earlier in the week in the Arizona immigration ruling.
The immediate outcome of this case is disappointing to many for political reasons. Even the law’s supporters are concerned about the difficulty of how it will work when all the provisions go into place. Pundits are tripping over themselves trying to decide whether this helps Obama’s re-election chances or boosts Republican candidate Mitt Romney. Who knows?
But if you take the long view — the view the chief justice inevitably had to take — then it was the Supreme Court that won today.
Pictured Above: The U.S. Supreme Court