LF: Roberts the Swing Vote: Court Upholds Most of Health Care

On the last possible day, the Supreme Court upheld most of the Affordable Care Act. (Here’s a pdf of the opinion.) Who won, then? John Roberts, the Chief Justice, who put himself in the majority with the Court’s four liberals, and may have changed the definition of what we call “the Roberts Court”; President Barack Obama, whose first term was defined by it; our sense of how the balance of powers ought to work, and against, perhaps, our growing cynicism about the Court’s politicization (although there is a fine line between cynicism and simple prudence). A conservative court, and a conservative justice, upheld a law passed and treasured by liberals. This is not the way the Court has worked in recent years, for either side. “The Court does not express any opinion on the wisdom of the Affordable Care Act,” according to the majority opinion, written by Roberts. No one asked it to.

But, really, the winners are Americans—the more than fifty million of them who don’t have health insurance, but also the rest. Income and well-being have increasingly come to define each other; this is a victory for our sense of fairness, and that there need not be two Americas—one where, say, a mother can get good prenatal care and a cancer patient has choices, and another where pregnant women show up at emergency rooms, “preëxisting conditions” can be a death sentence, and medical costs are one of the leading causes of bankruptcy and foreclosure. It won’t be immediate. This is a major step toward American fairness.

The “money quote” in the decision, as SCOTUSblog, the most reliable breaking-news source, put it, was that the individual mandate “need not be read to do more than impose a tax. This is sufficient to sustain it.” Roberts added that it did not matter that the law described this as a “penalty,” not a tax. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” In other words, the image of shadowy enforcers making children eat broccoli was always a delusion. If you don’t buy insurance, you pay a tax, and there are appropriate penalties for evading one of those, as there are for evading any payment that has a chance of keeping the country safe and connected, and making it better—and, whether Roberts thinks it does or not, wiser and fairer.

Again, the swing vote, on the main points, is Roberts. Anthony Kennedy wrote in a dissent that “we would find the Act invalid in its entirety.” Roberts was joined by Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer. They believed—as Roberts did not—that the A.C.A. was constitutional thanks to the Commerce Clause, without any talk of taxes. This did not, then, turn out to be a defining case on the expansion of the Commerce Clause, but it didn’t have to be.

It will, though, be interesting to see if any of Roberts’s language about the Commerce Clause is actually read as limiting it in other cases, and if the price of upholding the A.C.A. turns out to be significant in other areas. Justice Ginsburg seems to think it may, calling it a “novel constraint on Congress’ commerce power”:

In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to THE CHIEF JUSTICE, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

“Stunningly retrogressive” is not the phrase most people are using this morning to describe Roberts’s opinion; he is being celebrated as a moderate, called a disappointment to conservatives. But Ginsburg’s caution is worth watching.

On other issues, the Court did limit the expansion of Medicaid—this had to do with what the states could be made to pay. The Roberts opinion found that they couldn’t lose the federal money they got according to the pre-A.C.A. contours of Medicaid if they did not want to participate in the expansion. It is telling, and a sign that we don’t have an entirely new Chief Justice here, that the decisive point for Roberts was that the expansion “accomplishes a shift in kind, not merely degree,” and “transformed [it] into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level.” States, he believed, could opt out of that sort of thing without paying any cost.

One of the great questions of the next few weeks, and years, will be this: Who is John Roberts? In one passage from his Profile of the Chief Justice, Jeffrey Toobin wrote,

On issues of Presidential power, Roberts has been to Scalia’s right—a position that’s in keeping with his roots in the Reagan Administration. “John was shaped by working at the White House, where you develop a mind-set of defending Presidential power,” the lawyer who worked with Roberts in the Reagan years said.

Where does this decision fit in? Whose power, in this case and in others, does Roberts most value? For the moment, the answer to the question about the Chief Justice is simple: John Roberts is the switch in time that saved nine for our era—and the vote that saved Obama’s great achievement, if not his Presidency. But that, again, is just for the moment.

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