Obamacare Ruling: John Roberts' Power Play

I've long thought that Supreme Court were a bunch of political hacks who dressed up their personal opinions in pseudo-legalese and pomposity (see my earlier post). Indeed, viewing the Court in this way helped predict 8 of the 9 votes and the pundit reaction to those votes. None of those votes or responses interest me. What interests me is John Roberts' decision, the only time he has ever brought victory for the liberal wing of the Court.

There's only one person who can truly know what was going on in his head. But I can make a guess.

First, some brief background. Let's not pretend John Roberts was a closet commie biding his time until he could reveal his true principles. John Roberts was the guy (one of the five, at least) who ruled just a few months ago (this April!) that police officers can stick their gloved hands up people's bottoms and vajajays for any reason (i.e., seat belt violations, jaywalking, etc.) and that this doesn't violate the Fourth Amendment prohibition of unreasonable search and seizure. He presided over the ludicrous 2010 ruling in Citizens United that money is speech is freedom. He worked for Reagan and was nominated to the Supreme Court by the that great liberal GW Bush.

Let's assume that in the ruling on Obamacare/the Affordable Care Act, the other Justices were split 4-4. Roberts then had a choice: vote for, against or abstain. Why would he choose to vote for and go against EVERY OTHER 5-4 VOTE HE HAS TAKEN since he became a Justice in 2005? John Roberts' decision can come down to one word: power.

1. Personal legacy. The aspirations and historical legacy of one man can have profound effect on their conduct. Prior to the Obamacare ruling, Democratic commentators were basically deriding Roberts as a partisan hack (according to Jeffrey Toobin, who for some reason lots of people seem to respect as a legal journalist, "Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party."). Today, there are thousands of Democratic commentators and media outlets saluting the fortitude and moderation of John G. Roberts, Jr. Although it's impossible to predict what may happen in the remaining, potentially very long time he has as Chief Justice, it's likely this will be in the first sentence of his obituary ("Chief Justice John Roberts, who oversaw a Court that solidified the standing of conservatism in American life while simultaneously reaching principled decisions on programs dear to liberals, died today..."). Hell, this decision may well get him Time's Man of the Year. With one fell swoop, the image of a rigid partisan has been transformed into one of wisdom and statesmanship.

2. The new swing vote. In a 4-4 Court, the swing Justice has all the power. He (they are males, in this case) can write the entire opinion himself. And he can write it in a way that has far-reaching, expansive interpretations that set the stage for future victories (see #5: Poison Pill). Prior to this ruling, Justice Kennedy had all the power on controversial decisions. But now, John Roberts can extract what he wants from the liberal Justices. In one move, John Roberts is now one of a handful of the most powerful people in America.

3. Supreme Court validation. Even before the recent Obamacare opinion (whose effect on public opinion of the Court has yet to be determined), the Supreme Court was unpopular by historical standards. The polling organization Rasmussen provides the following Supreme Court job approval ratings:

Excellent 8%
Good 28%
Fair 42%
Poor 17%
Not Sure 5%

Also unprecedented was Obama's famous, very public scolding of the Court in his 2010 State of the Union address. Certainly that wasn't enough to sway Roberts' opinion, but it must not have been a feel-good moment for a guy and a Court who basically try to live cloistered lives.

This ruling gets the Democrats off the Court's back. It provides a veneer of independence. And, perhaps most importantly, it provides cover for future major opinions (e.g., Yes, he overturned Roe v. Wade, but he also gave us Obamacare!).

4. Political effects. At first glance, this seems a political victory for the Republican Party, although the effects cannot yet be ascertained. Rightly or wrongly, the backlash to Obamacare brought lots of Republicans to the polls for the 2010 midterm shellackings. In a close race, every vote counts. If Romney ends up winning the election, Obamacare will be overturned anyways. And this decision probably helps Romney get out the Republican vote and win the election.

5. A poison pill interpretation for conservatives. Another significant point of the decision was the ruling that Obamacare is not covered under the Commerce Clause of the Constitution (this is obviously distinct from a ruling of unconstitutionality). According to Laurence Tribe:

"In a step I had considered unlikely and entirely lacking in precedential, textual and historical support, five members of the Court determined that Congress did not possess authority under the Commerce Clause to regulate “inactivity.” ... With future Supreme Court offices occupied by appointees of a President Romney, today’s limited holding could become the muse for another, perhaps more successful, wave of attacks on federal power."

[Tribe himself rejects this "Poison Pill" interpretation, and I am quoting only parts of what he wrote in order to illustrate the argument.]

6. A tax. The ruling upholding almost all of Obamacare was based on the power of Congress to tax. Of course, Obama promised many, many times that this did not increase taxes. It's unclear how this will play out, but it has the potential to be a victory for Republicans, a la #5.

Although the validity of any of these points is open to discussion, I think it's important to keep some of them in mind as we try to read the tea leaves about the future direction of the Court. Roberts' decision may very well have been principled, but stating as such ignores the very real power he accrued for himself and his usual political allies

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