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.