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The Roberts Healthcare Decision: A Victory or a Defeat for the Obama Presidency and Our Country?

Both liberals and conservatives werestunned by the majority decision written by Chief Justice John Robertsupholding the constitutionality of the federal healthcare legislation formallyknown as the Patient Protection and Affordable Care Act. In the wake of the Court's decision, manyare left wondering how Justice Roberts came to join with the four liberalJustices to write one of the most important constitutional opinions in thehistory of the Supreme Court. Many observers have offered their views over whatis now known to be a last minute change of heart for Justice Roberts, whoreportedly had originally favored striking down the law.

Thedecision's import is not just its legal impact on existing constitutional lawbut also and perhaps more importantly, from the circumstances leading up to andfollowing the Court's ruling that reveal something more about the Justices andtheir willingness to do extraordinary things to promote their personalphilosophies, whether legal or political.

Certainlythe case establishes more restrictive legal parameters on the scope of theCommerce Clause and the breadth of Wicker v. Filburn, which some strictconstructionists argue is a prime example of extreme judicial activism ingranting Congress powers to regulate farmers' milk production based on itsimpact on interstate commerce. Althoughit is unclear legally why the majority rejected the Commerce Clause as thebasis for upholding the law in favor of the obscure taxing power argument, itwas clearly a decision of compromise where the means was less important thanthe end.

The opinion also explains and reaffirms Congress'constitutional powers to enact new laws based on its enumerated and inherentpowers. Chief Justice Roberts offers a mini-lesson on federalism in the spiritof his predecessor and admired legal protégé, Chief Justice John Marshall, whoauthored many of the seminal Supreme Court opinions including Marbury v.Madison, McCullough v. Maryland, and Gibbons v. Ogden, which interpretedfor the first time the Constitution's federalism underpinnings and served asthe judicial foundation for such things as separation of powers, the scope andlimits of the Constitution's enumerated and implied powers granted to federaland state governments, and the role and relationship between the federal andstate governments in matters of local or national importance.

Perhapsthe most important aspect of the majority's ruling is Chief Justice Roberts'willingness to defend the Court's institutional legitimacy over his personaljurisprudential and political views.

Lawprofessor Jeffrey Rosen, a Supreme Court expert and legal affairs writer,recently offered a post-script to the opinion in the New Republic, wherehe detailed Justice Roberts' perennial interest in maintaining the integrity ofthe Court as a supreme lawmaking institution removed from political pressuresand policies imparted to the elected sent to Washington by theirconstituents. Mr. Rosen revisits hisextensive interview with Justice Roberts after his first term on the Court,where he explained his view on the Court's role and the need to preserve itsinstitutional legitimacy by avoiding a strict doctrinal approach to appellatedecision-making: "I think judicial temperament is a willingness to step backfrom your own committed views of the correct jurisprudential approach andevaluate those views in terms of your role as a Judge . . . . A justice is not like a law professor, whomight say 'this is my theory of this, and this is what I'm going to be faithfulto and consistent with and in twenty years we'll look back and say, I had aconsistent theory of the First Amendment as applied to a particular area. . ..'" As Mr. Rosen and others have notedsince the healthcare decision was announced, Justice Roberts held true to hisconcern for the institutional legitimacy of the Supreme Court as an apoliticalthird branch of government despite pleas from the right and a reported lobbyingeffort by Justice Kennedy and the three other conservative Justices who, exceptfor Justice Kennedy, are exactly the type of professorial, doctrinal juristsJustice Roberts has attempted not to become.

As trueas Chief Justice Roberts was to his goal of preserving the institutionalintegrity of the Court, the events leading up to an following the decision havewide-reaching negative consequences far greater than he may have wished orexpected.

Daysbefore the Court's decision, NPR Morning Edition ran a story on the prestigeand secrecy surrounding the inner-workings of the Supreme Court. The commentator described the apparent isolationof the Court from the pressures of social and political views during itsdeliberative and opinion-writing processes, and the inclinations of certain justiceswho refuse to read certain newspapers during periods when politically chargedopinion are being decided. The reporterexplained why, for a variety of reasons, leaks before or after decisions areissued never occur and that insight on those issues only comes from books,speeches and planned interviews of the Justices well after the case isannounced. It is rather incredible, the NPRreporter noted, that a government institution of the size and importance of theSupreme Court could avoid leaks even when the Office of the President cannotcontrol unauthorized leaks of highly sensitive national security information,which imperil human lives.

Ironically,two days following the Court's decision, Jan Crawford of CBS News appeared on Facethe Nation and reported the stunning details of an inside Supreme Court"leak." She reported that JusticeRoberts had switched his opinion and that he was originally prepared to declarethe law unconstitutional. She described theevents and communications between the Justices and their chambers that onlyinsiders would know, and detailed a fierce lobbying effort by several Justicesto sway Justice Roberts back to their side. According to Crawford, the leak wasan intended one and due to a sense of "betrayal" felt by the conservativeJustices and their law clerks. This"high ranking source close to the Justices" offered such stunning andmeticulous details that some speculate it was either one of the Justicesthemselves or, at minimum, someone with express instructions to leak thedetails of the Chief's change of mind and the efforts to sway him bac

Thelarger concern now is whether the leak was made in advance of the public announcementof the Court's opinion. In the daysleading up to the decision, conservatives expressed surprising pessimism overthe likelihood the Court would strike down the law as unconstitutional. Such pessimism is bewildering in light of theoral argument questioning by the Justices, and the pundits' views that the lawwas on very shaky constitutional ground, particularly after oral arguments werecompleted.

Regrettably,what Chief Justice Roberts had hoped to gain from his majority opinion and hisgoal of preserving the institutional legitimacy of the Court as an apolitical,nondoctrinal institution now been lost to the selfish, retaliatory, andspiteful acts of several "sore losers" who appear unable to put the law beforetheir own personal views. That a leak of this magnitude might again occur forpolitical or economic gain is a very serious problem. An investigation into this event and perhapsthe appointment of a special prosecutor is in order to scrutinize the oneinstitution that is perhaps most well equipped yet ill prepared for such anevent.

EvenChief Justice Roberts himself may have had a political motive in the reasoningof his decision, despite his protestations against such influence on appellateoutcomes. Indeed the Roberts' opinionmay have the political impact of preventing the re-election of President Obamadue to the public's uninformed but strident desire to repeal the law. That can now occur only by repealing thePresident's re-election.

Aninstitution once vested with the greatest and most important power in ourRepublic has now become a harshly political and irresponsible group ofdogmatic, self-serving jurists whose decisions are predicated more on theirpolitical views than long-standing legal precedent. The healthcare legislationis perhaps the most important piece of enacted federal legislation since theCivil Rights Act of 1964 and will have wide-reaching positive affects on millionsof people who are uninsured and who place a drain on the U.S. economy. The law was carefully crafted and shepardedthrough committees and to the floor of both houses and was subjected to yearsof scrutiny and debate. Everyone whovoted for or against the bill, but particularly the drafters, knew then andknow now what the bill intended and it was certainly not a tax on the Americanpublic which at least on paper raises the deficit to all time highs.

Conservativepoliticians now have their talking points for their campaign to oust PresidentObama.. Despite not a mention during thelegislative debate that the law was a tax, Justice Roberts' majority opinion hasfueled a conservative cry that the President single-handedly imposed a gigantictax on the American public. Can theyreally be serious?

A tax isnot a tax just because five Justices on the Supreme Court in hindsight say itis for the limited purpose of declaring a law constitutional. It is universally agreed that the legislationas now interpreted would never have gotten out of committee to see the light ofday, but it is now the law of the land.

Unfortunately,the memory of the national electorate is very short and they either ignore orare unaware of the political hypocrisy involved. Romney and the conservatives complain aboutthe tax imposed by the law but fail to mention or explain that he convinced votersin Massachusetts to support a nearly identical state healthcare law. Thesuggestion that the Obama administration was premeditated in disguising a taxas a penalty is absurd, but the allegation appears to be holding traction withvoters nevertheless.

Themajority opinion was a deftly executed political compromise designed by ChiefJustice Roberts, who perhaps thought he was doing the conservative right afavor by getting the four liberal Justices to sell their souls to the taxdevil. He was in fact successful, but, unfortunately,the scope of the Commerce Clause is now in question, as is the integrity of theSupreme Court as an institution.

Whetherthe consequences of the Justices' ruling and conduct of the Court was intendedor unintended, the political and institutional blowback may be far more severethan anyone could have predicted. It istime for further public scrutiny of the ill-understood institution that untilnow has been an unchecked pinnacle of our third branch of government which knows only how toscrutinize but which is less likely prepared for the scrutiny required by thecircumstances surrounding the healthcare decision.

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