‘Obamacare’ ruling: Why did Roberts switch sides?

There’s no other word for it, said John Podhoretz in the New York Post. Supreme Court Chief Justice John Roberts is a “coward.” I don’t say this just because Roberts voted with the four liberal justices to uphold President Obama’s Affordable Care Act in last month’s landmark decision. I say it because we now have learned—thanks to leaks from court insiders to CBS News—that Roberts initially voted to strike down the law, but changed his mind. Why? The chief justice was apparently worried that if the court struck down the law’s mandate that people buy health insurance, the White House and the liberal media would launch a withering assault on the court’s legitimacy, accusing its conservative majority of engaging in blatant political partisanship. In his desperation to uphold the law, said Rich Lowry in NationalReview.com, Roberts resorted to some thin and transparently twisted logic. He agreed with his four fellow conservatives that the Constitution did not permit Congress to require citizens to buy private health insurance. But Roberts then devised a trick: The law’s “penalty” for violating the mandate, he said, was not a penalty but a “tax,” allowable under Congress’s taxing power. Voilà! Roberts had figured out how to end up with “the only 5–4 decision that wouldn’t subject his court to the calumny of the Obama administration and law-school deans everywhere.”

He deserves great credit for doing so, said Jeffrey Rosen in NewRepublic.com. After the conservative majority prevailed in a string of extremely polarizing 5–4 decisions—from Bush v. Gore to the infamous Citizens United campaign-finance ruling—a recent Gallup poll found only 37 percent of Americans expressing “strong confidence” in the Supreme Court’s neutrality. One more bitterly disputed, 5–4 ruling, tossing out the main accomplishment of a Democratic president, might easily have eroded “the institutional legitimacy of the court” past the point of repair. Instead, wisely, Roberts “placed the bipartisan legitimacy of the court above his own ideological agenda.” That decision has earned him cries of “Traitor!” from some conservatives, but this was “an act of judicial statesmanship.”

This was not statesmanship, but “judicial arrogance” and “sophistry,” said Peter Wehner in CommentaryMagazine.com. “Whatever motivated Roberts”—whether it was “high-minded concern for the legitimacy of the court,” or the approval of The New York Times—he decided this crucial case by reasoning back to a desired outcome. His little “lawyer’s trick” of turning a mandate into a tax fooled no one, said Michael Gerson in The Washington Post. Democrats have always denied that the penalty was “a regressive federal tax on the uninsured,” knowing that such a tax would be wildly unpopular. The chief justice, however, apparently believes he is “a philosopher king,’’ with the power to rewrite laws he prefers to uphold.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

Conservatives may yet end up thanking Roberts for his finesse, said Charles Krauthammer, also in The Washington Post. While giving Democrats ownership of their health-care mess, he joined the conservatives in setting strict limits on what the Constitution’s Commerce Clause permits the government to regulate. He thus drew a firm line against “the inexorable, decades-old expansion of congressional power” that was steadily eroding American liberty. Liberals may be cheering now, said Eric Golub in The Washington Times, but Roberts has cleverly “inoculated himself against charges of bias” for future rulings. And next year, the court will move on to big cases on affirmative action, gay marriage, and the Voting Rights Act.

Despite all the partisan passion, this “should have been an easy case,” said Jeffrey Toobin in The New Yorker. Conservatives actually came up with the idea of the health-care mandate in the 1990s, to avoid “free riders” on the system, and Gov. Mitt Romney successfully pioneered the mandate in Massachusetts. For two decades, no Republican “suggested there was a constitutional problem with the idea,” because there isn’t one. Since 1937, the Supreme Court has repeatedly recognized that the Commerce Clause “gives Congress a free hand to address national economic problems.” It was only the Right’s loathing of Obama that landed this case in the Supreme Court. In defusing a bitter political confrontation, said Paul Jacobson in AmericanThinker.com, Roberts actually rendered a very conservative ruling. He clearly had no love for the bill himself, but as he put it in his opinion, it is not the Supreme Court’s job “to protect the people from the consequences of their political decisions.” One can only hope that this is the start of a “new era in American jurisprudence, a time when judicial review comes to be applied prudently, sparingly—and rarely.”