What Analysts Are Saying: Roberts to the Rescue of Liberals
By giving the health care law's advocates a 5-4 victory, siding with a liberal majority and writing the decision himself, it looks like Chief Justice John Roberts is embracing the "umpire" role he said he'd take on during his confirmation hearings.
By giving the health care law's advocates a 5-4 victory, siding with a liberal majority and writing the decision himself, Chief Justice John Roberts, analysts agree, is embracing the "umpire" role he said he'd take on during his confirmation hearings.
"Chief Justice Roberts' vote saved the [Affordable Care Act]," SCOTUS Blog summed up. "Wow. So Kennedy voted with conservatives, Roberts with liberals. Umpire, indeed," Washington Post's Ezra Klein tweeted.
So far, court watchers are settling around the idea that this signals a new sense of the Roberts Court as one led by a cautious Chief Justice, a guy ruled less by partisan ideology than his critics once thought. Meanwhile, his decision to justify the individual mandate as a tax, not a power granted Congress under its ability to regulate interstate commerce -- which his four compadres in the majority disagreed with -- makes it difficult to know how the ruling will affect Congress's future ability to regulate issues of national importance.
The decision is major, analysts say, not just because it's so politically volatile, but because it gives us our best insight into the philosophy of a Court that's likely to stick around for a long time. "Chief Justice Roberts is just 57, and he will probably lead the Supreme Court for an additional two decades or more," wrote The New York Times's Adam Liptak in March. "But clashes like the one over the health care law come around only a few times in a century, and he may well complete his service without encountering another case posing such fundamental questions about the structure of American government."
This one, in other words, is the big daddy -- important not just for its impact on health policy, but for providing us our chance to understand how the Court will act on issues ranging from the role of a chief justice to the ability of Congress to intervene in national affairs. As analysts, pundits, and court-watchers react to the decision through the day, we'll be updating with the best takes.
Ezra Klein at The Washington Post has a smart piece downplaying Roberts' break with his conservative colleagues: "If you read the opinions, he sided with the conservative bloc on every major legal question before the court," he writes. "His break with the conservatives, and his only point of agreement with the liberals, was in finding that the mandate was a 'tax -- a finding that, while extremely important for the future of the Affordable Care Act, is not a hugely consequential legal question."
The New York Times's Ethan Bronner: "To those on the left who viewed him as an ideologue eager to pull the court rightward in a political fashion, this will now begin a re-examination of his style and legacy as it will for those on the right who considered the law unconstitutional and relied on him to make that point."
Amy Davidson of The New Yorker writes about what this means for the Roberts Court: "On the last possible day, the Supreme Court upheld most of the Affordable Care Act. 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.'" His ruling works "against, perhaps, our growing cynicism about the Court's politicization."
On the Court and party politics, New York's Jon Chait adds: "Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled. The long-term war over the shape of the state goes on, but the crisis of legitimacy has been averted. I have rarely felt so relieved."
Roberts's majority decision opens by noting, "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions." SCOTUS Blog's Amy calls this "a mini civics lesson" and an indication that the Chief Justice knows "that this is one for the ages." That would've been pretty hard to miss.
Under the heading "John Roberts, Moderate," National Journal's Matthew Cooper recalls how liberals hoped John Roberts might lead more moderately during his confirmation. Today's ruling supports that hope. "Roberts may turn out to be more of what he said he would be -- an umpire, not a player, and someone who doesn't want the Court to be too immersed in election year politics." As for the Court's future: "Sure, we don't know how John Roberts will evolve in the years ahead. Justices change. But he's shown a deference to federal authority in this case -- and in the Arizona case -- an aversion to being like the 'nine old men' who tortured Franklin Roosevelt, throwing out key elements of the New Deal."
On the Commerce Clause:
Amy from SCOTUS Blog puts the distinction between the Court's ruling on the individual mandate and the Court's thoughts on the all-important Commerce Clause into "plain English": "In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters."
Lyle from SCOTUS Blog notes that though the mandate lives, liberal fears that the Court would continue to narrow Congress's ability to regulate using "interstate commerce," could live alongside it: "The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress's authority to pass social welfare laws. Using the tax code -- especially in the current political environment -- to promote social welfare is going to be a very chancy proposition." His colleague Tom disagrees: "I dissent from Lyle's view that the Commerce Clause ruling is a major blow to social welfare legislation. I think that piece of the decision will be read pretty narrowly." We like how he "dissents." These guys!
Tom expands on this dissent: "Here is the money quote on the fifth vote to hold that the mandate is not justified under the Commerce Clause (recognizing that doesn't matter because there were five votes under the Tax Power): "The power to regulate commerce presupposes the existence of commercial activity to be regulated." That will not affect a lot of statutes going forward."
Amy Davidson of The New Yorker, says the jury is out on how much this decision will affect future Commerce Clause activity: "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. it 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 A.C.A. turns out to be significant in other areas."
Roberts, says New York's Chait, is playing a "long game," in his attempt to "interpret the Constitution to require right-wing economic policy." He writes: "If Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce. By endorsing this precedent, Roberts opens the door for future courts to revive the Constitution in Exile."
Slate's Tom Scocca echoes Chait, but sounds more dire. "Obama Wins the Battle, Roberts Wins the War," his headline reads. "This is a substantial rollback of Congress' regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society."
Previous to the decision:
Long before Thursday morning, people made predictions based on assumptions that Roberts would help the mandate survive.
Politico's Glenn Thrush: "In decades past, chief justices have labored mightily to secure something approaching consensus on major decisions." Roberts, he adds, declared in his confirmation hearing a desire to play "umpire," maintaining the court's legitimacy by providing it with strong, unified opinions as often as possible. (5-4 rulings on controversial decisions like Citizens United have called his commitment to the "umpire" role into question.)
Jeffrey Rosen's 2007 interview with Roberts in The Atlantic is essential for understanding his approach to the job. "In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics." This decision came out 5-4, but Roberts's presence in the majority of Democratic appointees makes it at least somewhat bipartisan.
Jill Lepore of The New Yorker: In a great history of the commerce clause and the Court published this month, past courts' interpretations of the commerce clause have shifted. "So long as conservatives hold sway on the Court," she warned, "the definition of 'commerce' will get narrower and narrower, despite the fact that this will require, and already has required, overturning decades of precedent." The mandate lives, but not under the commerce clause. The Court justified it under Congress's ability to levy taxes, so liberal concerns about the limiting of the commerce clause could stand.
Jeffrey Toobin in The New Yorker: "In a larger sense, a new limit on congressional power under the Commerce Clause would represent a crucial new impediment to all attempts by the federal government to address national problems."
The decision is of course complex and we're all just making our way through it, so check back here as more legal analysis comes in to help us better understand what all this means for the bigger issues shaping the Roberts Court.