Supreme Court on Obamacare: The Role of Chief Justice John Roberts

The upholding of the Affordable Care Act (aka “Obamacare”) by a 5-4 decision of the U.S. Supreme Court is as much about the Separation of Powers and the respective roles of the three branches of government as it is about the Commerce Clause or the Taxing Clause.

Chief Justice John Roberts, who stunned Court observers by siding with the Court’s liberal wing to uphold the Act, signals this in various ways through his majority opinion.

Roberts sets the table early in his tome, reminding readers by citing a 129-year-old case that the Court maintains a “… general reticence to invalidate the acts of the Nation’s elected leaders.” He goes on:

“Members of this Court … possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our (n)ation’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.”

It couldn’t be more clear. Roberts decided he wanted no part in overturning a program that would change the fabric of U.S. government and its relationship with its citizens for generations.

The source of his unwillingness is unclear, of course, and will stay that way because he won’t come out with a tell-all memoir any time soon (Supreme Court Justices hold their seats for life). It’s reasonable to speculate, though, that his choice of paths resulted from a combination of the pressure of being the single deciding actor together with his intellectual views about the role of the Court.

When in chambers after oral arguments, starting to see the opposing sides of the argument congeal, Roberts may have thought about whether he wanted to — or should — be the vote to change U.S. history. Would he personally pull the reins on the biggest expansion of American government in our lifetime — the New Deal part deux? Was that his job or the Court’s?

Roberts may have faced a quandary, however, because upholding the Constitutionality of the Act under the Commerce Clause would cut against every fiber of his conservative and jurisprudential being. He simply couldn’t be responsible for adding a new expansive ring to the reach of the Commerce Clause. That is, for the first time Congress would have the power to not only regulate affirmative acts by individuals, but also compel them to take those acts. How could he possibly be the Chief Justice who opened this Pandora’s box, not knowing where it would lead decades from now?

Enter the Solicitor General’s back-up argument before the Court, the one that was so contorted it occasionally drew chuckles from the live gallery. It was all about the tax.

This tension emanates from the pages of the opinion through the difficult logic Roberts uses to explain how the payment provision in the individual mandate is a ‘tax’ for purposes of the Tax Clause — which ultimately makes the Act withstand constitutional muster. But it is not a tax for purposes of the Anti-Injunction Act of 1867 — for, if it were a tax under that statute, the case would not yet be ripe for adjudication and the Court shouldn’t be deciding it today. It’s a “penalty” for that purpose.

He parses this by stating that the explicit intent of Congress that the payment provision be a penalty is acceptable as applied to the Anti-Injunction Act so the Court can decide the case.

Yet, congressional intent be damned for the constitutional interpretation. The majority’s constitutional interpretation of it as a tax (though Congress and the President repeatedly argued that it was not a tax, but a penalty) is solely what matters for the Tax Clause outcome. Roberts cherry-picked legislative intent masterfully to argue his point. And his clerks also did yeoman’s work finding a pair of cases from 1922 involving challenges to the long-defunct “Child Labor Tax,” which kind of did the same thing (but not exactly).

In the end, Roberts’s arguments reached back in time, providing history lessons and relying heavily on very old cases. This reveals he was acutely aware of his place in history and the potential effects this decision would cement in time.

The profound historical ramifications didn’t seem to bother four other Justices, though, including every talking head’s favorite “swing” voter — Anthony Kennedy — who concluded the Act was unconstitutional. No, this is really a story about the Chief Justice.

Roberts in essence punted, and, as many will eventually argue, justifiably so. He was able to mesh together an argument that the four liberal justices signed onto, whether they really bought it or not, to save the Act.

Through both the holding and the plain language of his opinion, Roberts effectively said the ball is in the court of the American electorate and threw the gauntlet down on behalf of his branch of government. If the people really want to get rid of the Act and its massive expansion of government, they can vote Republicans into the majority in both houses of Congress and the Presidency in November.