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During the presidential administration of George H. W. (the Elder) Bush, I knew a deputy solicitor general of peerless conservative pedigree and prudential outlook named John Roberts. He wears a black robe now, but he’s the same lawyer, more or less.
That lawyer, deeply concerned about the credibility and reputation of the judicial branch, today serves as chief justice of the U.S. Roberts surprised many people (including me) with the reasoning he used in his lead opinion (PDF) upholding the core of President Barack Obama’s health-care overhaul law. He did not surprise me by seeking a means of deferring to the political branches on an important question of regulatory policy, and in so doing, defusing liberal attacks on the high court’s Republicans as a monolithic partisan force determined to undermine a Democratic president.
As the second-ranking advocate at the Department of Justice during the first Bush administration, Roberts unfailingly expressed his legal views in respectful, calm terms, whether arguing before the justices or speaking (always privately) to a reporter covering the court. I recall him getting passionate only when talking about the importance of preserving the judiciary’s role as an arbiter of legal disputes, not a maker of policy. He was not naive. He acknowledged that politics inevitably came into play. But if the Supreme Court were seen as merely a gussied-up version of the Senate Judiciary Committee, its rulings would lose force. That’s not a direct quote. Roberts never let me quote him.
I suspect that concerns about the Supreme Court’s institutional role help explain the inventive manner with which Roberts disposed of the health-care case. On the main question before the justices, he wrote for a 5-4 majority that Congress has the power to require Americans to obtain insurance or pay a penalty. Roberts reasoned that lawmakers could not accomplish this goal under their constitutional authority to regulate commerce, which is where almost all of the political debate had focused. Instead, he said Congress could mandate coverage as a tax—a lawyerly distinction that angered four dissenters (PDF), led by Justice Antonin Scalia, but effectively sidestepped an opportunity to turn the Roberts Court into a political foe of President Obama’s reelection campaign.
Roberts’s opinion—59 pages in length and notably placid in tone—asserted the high court’s role as constitutional referee by noting that Congress stepped out of bounds when it framed the failure to obtain insurance as an economic “activity” subject to federal regulation. Lack of insurance is more reasonably understood as “inactivity,” he argued, and Congress can no more regulate financial inactivity than it can force people to eat broccoli because it’s good for them (the Affordable Care Act litigation constituted a high point for vegetable-related analogies). But look, Roberts went on to say, if we just call the mandate a “tax” there’s little debate over whether Congress can impose such a levy, assuming lawmakers are willing to take the political heat associated with raising taxes. (To extend that thought beyond the immediate ACA dispute: There is likewise little constitutional controversy over whether Congress possesses the authority to impose universal health insurance; the insurance mandate was actually an alternative originally pushed by Republicans who wanted to avoid a single-payer system. The Republican flip-flop on the mandate, and Mitt Romney’s past support for an insurance mandate during his term as governor of Massachusetts, will doubtless arise in the coming presidential campaign.)
The upshot is that Roberts pushed the health-care overhaul back into the political arena: across the street to Congress and down Pennsylvania Avenue to the White House. He did lead the court in limiting the ACA’s extension of the Medicaid program for the poor by saying the federal government can’t threaten to withhold existing money from states that don’t fully comply with federal rules. His conclusions about the limits of congressional authority under the Commerce Clause will make lawmakers think more carefully about exercising that muscle in the future. And he has pulled the court back to the periphery of what will be a heated clash between Obama and Romney over whether and how to extend insurance coverage to the tens of millions of Americans who currently lack it.
Oh, and Roberts made me look (sort of) prescient. Before oral arguments in the case, I wrote a piece for this website entitled “Why Obamacare Will Survive Court Politics.” I was wrong on the vote count. I was wrong on the reasoning. I didn’t anticipate the Medicaid rollback. But I said Roberts was vitally concerned about the high court being seen merely as a political operation.