For many U.S. Supreme Court watchers, it was clear that Chief Justice John Roberts dared not overturn President Obama’s Affordable Care Act (a.k.a. ACA or Obamacare), and, of course, he did not. To the contrary, Roberts left his conservative brethren behind and joined the progressive side of the High Court bench in upholding the ACA.
The Obamacare ruling, National Federation of Independent Business v. Sebelius, is a complex, and often nuanced, collection of holdings, which will be analyzed in the coming months and years as Court observers come to fully appreciate its implications. After a fast read, I find it nice that a Chief Justice of the United States actually did, in this historic instance, exactly what he said he would do during his confirmation hearings.
While many were surprised by the Chief Justice’s vote to uphold the law, and his rationale for doing so, they should not have been. Not only was Roberts’s word at issue, but so too was the reputation of his Court. In addition, with this holding the Chief Justice truly made this the Roberts Court, rather than Kennedy Court (for Justice Anthony Kennedy had been the controlling swing vote before this ruling.)
Anticipating Chief Justice Roberts’s Vote
As knowledgeable people began looking closely at the question whether the U.S. Supreme Court would strike down Obamacare during the days leading up to the ruling, I noticed an increasingly common view emerging—namely, the view that the majority, led by the Chief Justice, would likely uphold this law.
Informed people understood that this case was a defining moment for the Roberts Court, as did the Chief Justice. Based on this ruling, if the Roberts Court had overturned this important new law, it would likely have been forever viewed as a Court controlled by conservative partisan political activists, rather than a Court where, in fact, justice could be done.
Notwithstanding the contentious and extended oral argument relating to the healthcare laws, which resulted in a widely-held belief in conservative circles that the law was going to be overruled, it was clear to many others that this would not happen. This was certainly my take, so I joined by Twitter the thinking of experienced Court watchers like Tom Goldstein of the SCOTUS Blog and Robert Reich, now a UC Berkeley professor, both of whom had it correct, as did former Solicitor General Walter Dellinger. All of these highly knowledgeable commentators explained why it was more likely that the Court’s ruling would uphold the law, than that it would strike it down.
Here’s the bottom line, in my words, rather than the others’: Chief Justice John Roberts is an intelligent man, with a good political sensibility. Given the Supreme Court’s highly activist and purely partisan rulings in Bush v. Gore (2000), and more recently in Citizens United v. FEC (2010), the fast-declining reputation of the Supreme Court was at a tipping point. One more high-profile partisan ruling, and the Court’s reputation could have been damaged beyond repair. Fortunately, however, the Chief Justice refused to tank his Court.
The U.S. Supreme Court has, of course, no way to enforce its rulings, other than with the logic and reasoning that give these holdings their moral authority. A partisan High Court will lose public support, and without public approval, this institution cannot survive as a co-equal branch of government. The Supreme Court was not designed to be another political branch; it is not a super-legislature of non-elected officials. And Chief Justice Roberts clearly understands this reality, as he made clear during his confirmation hearings.
Chief Judge Roberts’s Confirmation Hearing Testimony
In his prepared statement, as well as when he was being questioned before the Senate Judiciary Committee during his confirmation hearings to become chief justice, John Roberts repeatedly analogized the role of a justice to that of an umpire. This analogy would be particularly fitting for a chief justice, who is the leader of the Court.
More specifically, Robert testified under oath that “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath, and judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.”
This was a powerful statement. It was a strong declaration against judicial activism. Similar references to, and discussions of, this passive, objective decision-making—styled as neutral—were raised and addressed on some fifty different occasions during Roberts’s four days of testimony. In short, Roberts’s umpire reference was no fleeting remark. And in writing the majority opinion for the Court on the healthcare law, Chief Justice Roberts stayed true to his confirmation testimony.
For example, when explaining the majority’s posture, the Roberts Obamacare opinion resonates with his own confirmation testimony: “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.”
Chief Justice Roberts’s confirmation testimony also foreshadowed his view of the applicability of the Commerce Clause of the Constitution to the individual mandate of the healthcare law, which was one of two principal theories that Congress and President Obama had relied upon as authority for the law. The other theory was based upon the taxing power of Congress. That taxing-power theory was the one that Chief Justice Roberts relied upon to uphold Obamacare, which was something of a surprise.
To understanding Roberts’s position on the relevant Commerce Clause jurisprudence, a brief primer may be helpful.
Relevant Commerce Clause Jurisprudence In A Nutshell
Constitutional scholars (recently interviewed by Bloomberg BNA) describe the Commerce Clause of the Constitution (Art. I, Sec. 8, Clause 3) and the body of law that has developed regarding the powers of Congress and the States that exist under this clause, as ebbing and flowing since the 1800s, under the Supreme Court’s ruling.
In the words of Irvine Law School Dean Erwin Chemerinsky, this law has moved from a broad “nationalist perspective” to a limiting “federalist perspective.” The Rehnquist Court returned to a federalist view, and Dean Chemerinsky pointed out that the ruling on healthcare would show “how far the pendulum is swinging.” Chief Justice Roberts’s opinion shows that the pendulum has swung to the hard right under the Commerce Clause, thus limiting Congressional power under this clause.
Yale Law Professor Akhil Reed Amar told Bloomberg BNA that the early landmark holding of McCulloch v. Maryland (1819), upholding the power of Congress to incorporate a national bank, was clear authority for Obamacare. Professor Amar, who says that there are a host of Commerce Clause rulings to provide authority for the Court to uphold the healthcare law, told Ezra Klein before the ruling, “If they decide [to overturn] this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” While Akhil Amar may not be cheering Chief Justice Roberts’s position on the Commerce Clause, the fact that Roberts relied on McCulloch v. Maryland to frame his ruling cannot be too disheartening for Amar.
Following an earlier federalist period that extended up to the New Deal era, the High Court began expanding the use of Commerce Clause powers in Wickard v. Filburn (1942), which held that Congress could restrict the wheat production of an individual farmer since his actions could potentially affect interstate commerce. By 1964, the High Court unanimously upheld the desegregation of public accommodations by the Civil Rights Act under the Commerce Clause in Heart of Atlanta Motel v. United States.
Two 5-to-4 rulings by the Rehnquist Court signaled that the conservatives on the Supreme Court were restricting Congressional power under the Commerce Clause: United States v. Lopez (1995) and United States v. Morrison (2000). In Lopez, the Court struck down as beyond the scope of the Commerce Clause the Gun-Free School Zone Act of 1990, ruling that the possession of a firearm did not have a sufficient “connection with or effect on interstate commerce.” In Morrison, the Court majority claimed that the Violence Against Women Act of 1994 did not entitle a woman who had been raped to pursue her attacker because gender-based violence was not sufficiently related to interstate commerce. Clearly, these Rehnquist Court rulings had an influence on John Roberts, a Rehnquist law clerk and admirer.
By 2005, the Rehnquist Court again took a position consistent with Wickard, in the case of Gonzales v. Raich, which held that Congress’s Controlled Substances Act could trump, and outlaw, state laws legalizing marijuana for medical uses. The Court reasoned that even homegrown marijuana might make its way into the national, albeit illegal, market, and thus that it affected the larger regulatory scheme. But Raich approvingly cited Lopez and Morrison in reaching its conclusion.
Roberts’s Confirmation Hearing Testimony About Commerce Clause Jurisprudence
During Roberts’s confirmation hearing, Senator Charles Schumer probed his attitude toward the jurisprudence of the Commerce Clause. For example, Schumer asked Roberts if he supported the landmark ruling in Wickard v. Filburn. Roberts hedged, saying that Wickard was not a settled precedent because it has been raised in later cases, namely Lopez, Morrison and Raich. Schumer pressed. But Roberts dodged. Then, Schumer returned to the subject in his last round of questions, and the following exchange is representative of what occurred:
“Senator SCHUMER. . . . I want to go back to the Commerce Clause, which bothers me, as you know. Again, apart from anybody’s view, do you agree that the Congress has the power under the Commerce Clause to regulate activities that are purely local, so long as Congress finds that the activities exert a substantial economic effect on interstate commerce?
“Judge ROBERTS. If the question—and this is where the issue comes up—is whether or not as the Court has addressed it, the activities are commercial. If the activities are commercial in nature, you get to aggregate them under Wickard v. Filburn that we have talked about. You do not have to look at just that particular activity. You look at the activity in general. . . . .
“Senator SCHUMER. Do you believe Congress deserves a great, . . . that Congress deserves a great deal of deference when it decides something is commercial and has findings to that effect?
“Judge ROBERTS. I do, Senator, and I think that is the basic theme that runs through the Court’s Commerce Clause jurisprudence. There is again of course the Lopez and Morrison decisions, but there is also the Raich decision, and again I think it is very important to—and what the Raich decision said is you’ve got to consider Lopez and Morrison in the context of this broad sweep, not just as sort of the only decisions. . . . . But it would seem to me that Congress can make a determination that this is an activity, if allowed to be pursued, that is going to have effects on interstate commerce.”
In today’s healthcare ruling, Chief Justice Roberts concludes: “The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” In short, he draws upon Lopez and Morrison to limit Congressional authority. And in doing so, he has remained consistent with his confirmation testimony.
Confirmation Testimony As Prologue
Unlike several of Chief Justice Roberts’s colleagues on the High Court, whose confirmation testimony and their actions on the bench have proven to have virtually no relationship whatsoever, on this landmark ruling, Roberts has been good to his word. His confirmation testimony was, in retrospect, indicative of what his holding in the healthcare cases would be. There, he rejects the Commerce Clause, but, unlike some of the dissenters, he also refuses to become a conservative activist and overturn the law.
John Roberts said on September 12, 2005, that if confirmed, “I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”
That is exactly what Chief Justice Roberts just did in the Obamacare case. Let’s hope that, throughout his tenure on the bench, he continues to be, properly and laudably, an umpire.
What is most impressive to me is that he got the liberal wing of the Supreme Court to sign onto his interpretation of the commerce clause. The decision is very reminiscent of legal genius used in Marbury v. Madison. Much like in that case, when Marshall found that mandamus could be asked for and ordered by the Court but did not sustain the writ, Roberts found that you cannot use the commerce clause, but upheld it under the tax power and took all of the arguments Democrats could have made against the Court off of the table. It was judicially and politically brilliant and will be studied for ages. Great write from John Dean on this by the way.
“I strongly disagree with today’s decision by the Supreme Court, but I am not surprised. The Court has a dismal record when it comes to protecting liberty against unconstitutional excesses by Congress.
“Today we should remember that virtually everything government does is a ‘mandate.’ The issue is not whether Congress can compel commerce by forcing you to buy insurance, or simply compel you to pay a tax if you don’t. The issue is that this compulsion implies the use of government force against those who refuse. The fundamental hallmark of a free society should be the rejection of force. In a free society, therefore, individuals could opt out of “Obamacare” without paying a government tribute.
“Those of us in Congress who believe in individual liberty must work tirelessly to repeal this national health care law and reduce federal involvement in healthcare generally. Obamacare can only increase third party interference in the doctor-patient relationship, increase costs, and reduce the quality of care. Only free market medicine can restore the critical independence of doctors, reduce costs through real competition and price sensitivity, and eliminate enormous paperwork burdens. Americans will opt out of Obamacare with or without Congress, but we can seize the opportunity today by crafting the legal framework to allow them to do so.”
The above words were stated by Dr. Ron Paul. Ron Paul is like Ghandi. He is bigger than you, he is bigger than Obama and he is bigger than the Supreme Court. He symbolizes freedom! The more that our freedoms are taken away, the greater Ron Paul becomes.
The ruling in NFIB v. Sebelius has apparently overturned the precedent that a law has to be in effect before it can be reviewed. I wonder what the ramifications of that will be.
This article is just as partisan as just about every other article on the subject. The Supreme Court’s reputation is not declining fast — any more than any other era — and it is an asinine comment to say so. Still raising “Bush v. Gore” as a “purely partisan decision?” Laughable….
John W. Dean is full of that brown stuff. The Constitution has been aggressively abused by liberal activism since the 1930’s. Their goal has been to free government from the clear and well documented intentions of the founding fathers. Dean obviously lives in breathes the conceit that a “living constitution” means “take whatever you want” and that the actual PRINCIPLES this country were founded upon are old fashioned and disposable.
The truth is that yesterday five Supreme Court justices honestly and accurately concluded that the government mandate was completely outside congressional authority – that government COULD NOT force people to buy insurance. Then – and this is the horror of what happened, Roberts – in what is the judicial equivalent of doing a double backflip through the eye a flaming needle – citing Hooper vs California – said that “every reasonable construction must be resorted to in order to save a statute from unconstitutionality” In other words, although this mandate IS CLEARLY UNCONSTITUTIONAL, the court should find some “reasonable construction” (conceit) to give it the pretense of constitutionality.
Roberts then very, very broadly redefined the punishment government intended to inflict on people who did not buy insurance as nothing more than a tax. Then, having personally redefined it as a tax, he okayed it saying taxation is well within the federal government’s authority.
Polls show that at least two thirds of Americans already know in their hearts and minds that this mandate is clearly unconstitutional. Polls also show that over fifty percent of Americans are strongly opposed to this rather vulgar, oppressive law.
Principles – liberty foremost – are more important than any and all popular social goals. American freedom just took a high nose dive into the garbage heap of history yesterday. Imbeciles like Mr. Dean, who will justify sanction abrogating individuals right to achieve a popular social goal, belong at the bottom of the trash heap.
If Roberts is so great, why did Obama vote AGAINST him in the confirmation process? When he rules your way, he is a constitutional scholar and a man of his word. When he rules in favor of conservative ideas, he’s narrow-mined and a conservative partisan. What tripe!
I’m just a dumb Georgia lawyer without all this grounding in the former case history and interplay with Senate hearings. I thought the court could not overturn the law because it would “open the floodgates” for challenges to any “insurance” payment required by the government to be deducted from a paycheck — medicare, social security, unemployment. Then the corporate side would challenge their having to pay into social security, workers compensation and unemployment compensation. The heavens would fall and we’d be back in the Lochner era.
Only Nixon could go to Red China. Only Roberts could write this opinion.
So, you and Justice Roberts both thought that the reputation of the court was more important than the law? No wonder this country is in the toilet. Glad to see that you aren’t directly influencing policy any longer.
It is interesting that the Court labeled the individual mandate a tax and did not have that issue briefed in addition to the other 4 issues.
The truth is that yesterday five Supreme Court justices honestly and accurately concluded that the government mandate was completely outside congressional authority – that government COULD NOT force people to buy insurance. Then – and this is the horror of what happened, Roberts – in what is the judicial equivalent of doing a double backflip through the eye a flaming needle – citing Hooper vs California – said that “every reasonable construction must be resorted to in order to save a statute from unconstitutionality” In other words, although this mandate IS CLEARLY UNCONSTITUTIONAL, the court should find some “reasonable construction” (conceit) to give it the pretense of constitutionality.
Roberts then very, very broadly redefined the punishment government intended to inflict on people who did not buy insurance as nothing more than a tax. Then, having personally redefined it as a tax, he okayed it saying taxation is well within the federal government’s authority.
Polls show that at least two thirds of Americans already know in their hearts and minds that this mandate is clearly unconstitutional. Polls also show that over fifty percent of Americans are strongly opposed to this rather vulgar, oppressive law.
Principles – liberty foremost – are more important than any and all popular social goals. American freedom just took a high nose dive into the garbage heap of history yesterday. Imbeciles like Mr. Dean, who will justify sanction abrogating individuals right to achieve a popular social goal, belong at the bottom of the trash heap.
I still think Roberts is a traitor along with those other progressives.. just because its political does’nt mean you cannot rule for what is right .. I will end up in jail before I buy anything like that.. Free people have the un alienable right to refuse this bs crap..
This article assumes without any argument whatsoever that the Bush v. Gore and the Citizens United cases are based upon nothing more than right-wing political partisanship. That assumption is far from self-evident, to say the least. To dogmatically assert that this is the case betrays a partisan political partisanship from the other side of the spectrum.
Interesting and informative. Thanks.
Unfortunately sir, you are right to the extent that Roberts defined the commerce clause, and he would have been right on, had he stopped there. He overstepped his role by suggesting that all would fine if called a tax. To me? That was underhanded and sleeeeeeeeeeaaaazzzzzzzzyyyyy. At best
Al
ya, it does not mean, he can rewrite a statute to fit the current president’s idea and aspirations.
Mr. Dean would you say that the Roe v Wade was judicial activism?
This article by columnist John W. Dean is poorly written. Accordingly, I believe that its substance and legal reasoning leaves a lot to be desired!
Lamar C. Chapman III
Oak Brook, Illinois – USA
In the end it “the decision” was still made based on politics. Politics that you might agree with but still politics. And that is the problem with politics, its never ending I am right and you are wrong. That is why the Constitution was developed in the first place. As soon as man analyzes and processes something through his own feeble mind it becomes distorted and the truth is lost in his own egoism. Judge a man not by what he says but by the questions he asks. Your opinion is just that , your opinion.
Can’t buy John Dean’s analysis. Roberts “flipped” out of an egocentric desire to be perceived as a good guy.His Citizens United decision is the most grossly activistic and imperious decision of them all and reveals his true nature. No one asked to have McCain Feingold “gutted’ or to have the first amendment right of free speech “:granted to corporations”. He did it as an exercise of his judicial activism. John Dean scolded him when he did it and appropriately so. Now John sees virtue in his activism , I suspect, because this time his imperious attitude winds up with a result that John agrees with
If applying the umpire analogy can take the politics, money, and party loyalty out of judicial decisions then it’s a valid view. Regardless, with this decision Roberts took the first step towards restoring the credibility of his court. Although his opinion and reasoning find consistency in the logic of his jurisprudence, I wonder whether he also may have been motivated by self-interest. Namely, to take some of the power back from Kennedy, perhaps?
It’s nice that the Chief Justice refused to tank his Court, but I’m not sure to what extent concerns over the Court’s reputation should govern a Justice’s reading of the Constitution. All this sounds a bit as if CJ Roberts may well have ruled the other way if that would have saved his Court from tanking.
You conclusion contradicts the rest of the article. John Roberts wanted the court not to strike down ACA. John Roberts wants to limit government powers. And he found an excuse to do both. That is to say he first decided the answer, then found constitution magic to give him the answer wanted. That’s not what umpires are supposed to do. That’s not what judges are supposed to do.
Maybe MSNBC was right when they characterized the decision as “The Umpire Strikes Back”. Certainly my own view is that the recent Roberts rulings on healthcare AND immigration has much to do with an attempt by the republican establishment to smack down the tea partiers and tell them that they need to shut up and behave before they ruin the game for everyone.
Another way of looking at Justice Roberts is that President Obama correctly recognized that Roberts would shy away from a direct confrontation with a President who had nothing to lose by shying away from a decision that would force Obama to run against the Court, especially since Obama signalled in his reaction to Citizens United and his famous pre-decision statement about why the Court should rule his way on healthcare, that he was not afraid to pick a fight if backed into a corner.
After doubling down on a hack decision like Citizens United, the suggestion that Roberts suddenly became principled does not pass the smirk test.
Either way, Professor Amar’s apparent faith that devoting one’s life to the law has some special meaning notwithstanding, law is political, and any good lawyer can effectively argue either side of the coin.
Yours is a fair treatment of the issue at hand. I would add that liberal justices usually vote in unison, whether or not they are in the majority, and one doesn’t hear weeping and gnashing of teeth over the political strong arm tactics of the left.
Mr. Dean quotes approvingly Justice Roberts “It is not our job to protect the people from the consequences of their political choices.” I would say that the purpose of the Supreme Court is just that! No, agreed, it is not the majority that needs protection against the majority’s political choices, but the minority!
If a minority wishing to be left alone and not be hounded by IRS Agents to purchase that which they do not want is not protected by The Court, they have no remedy other than to sit on the porch with their shot gun trained on the “revenuer” to “git offa my land!” Or State Nullification as Jefferson and Madison had entertained in their Kentucky and Virginia Resolutions respectively.
So we are left with Personal Nullification, or State Nullification, Rebellion, or Tyranny. Hard to choose; hard to choose. Hmm, I think I’ll go with Rebellion!
YOU ARE A COMPLETE FOOL and an ESTABLISHMENT HACK!