Both liberals and conservatives were stunned by the majority decision written by Chief Justice John Roberts upholding the constitutionality of the federal healthcare legislation formally known as the Patient Protection and Affordable Care Act. In the wake of the Court’s decision, many are left wondering how Justice Roberts came to join with the four liberal Justices to write one of the most important constitutional opinions in the history of the Supreme Court. Many observers have offered their views over what is now known to be a last minute change of heart for Justice Roberts, who reportedly had originally favored striking down the law.
The decision’s import is not just its legal impact on existing constitutional law but also and perhaps more importantly, from the circumstances leading up to and following the Court’s ruling that reveal something more about the Justices and their willingness to do extraordinary things to promote their personal philosophies, whether legal or political.
Certainly the case establishes more restrictive legal parameters on the scope of the Commerce Clause and the breadth of Wicker v. Filburn, which some strict constructionists argue is a prime example of extreme judicial activism in granting Congress powers to regulate farmers’ milk production based on its impact on interstate commerce. Although it is unclear legally why the majority rejected the Commerce Clause as the basis for upholding the law in favor of the obscure taxing power argument, it was clearly a decision of compromise where the means was less important than the 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.
Perhaps the most important aspect of the majority’s ruling is Chief Justice Roberts’willingness to defend the Court’s institutional legitimacy over his personal juris prudential and political views.
Law professor Jeffrey Rosen, a Supreme Court expert and legal affairs writer,recently offered a post-script to the opinion in the New Republic, where he detailed Justice Roberts’ perennial interest in maintaining the integrity of the Court as a supreme lawmaking institution removed from political pressures and policies imparted to the elected sent to Washington by their constituents. Mr. Rosen revisits his extensive 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 its institutional legitimacy by avoiding a strict doctrinal approach to appellate decision-making: “I think judicial temperament is a willingness to step back from your own committed views of the correct juris prudential approach and evaluate those views in terms of your role as a Judge . . . . A justice is not like a law professor, who might say ‘this is my theory of this, and this is what I’m going to be faithful to and consistent with and in twenty years we’ll look back and say, I had a consistent theory of the First Amendment as applied to a particular area. . ..'” As Mr. Rosen and others have noted since the healthcare decision was announced, Justice Roberts held true to his concern for the institutional legitimacy of the Supreme Court as an apolitical third branch of government despite pleas from the right and a reported lobbying effort by Justice Kennedy and the three other conservative Justices who, except for Justice Kennedy, are exactly the type of professorial, doctrinal jurists Justice Roberts has attempted not to become.
As true as Chief Justice Roberts was to his goal of preserving the institutional integrity of the Court, the events leading up to an following the decision have wide-reaching negative consequences far greater than he may have wished or expected.
Days before the Court’s decision, NPR Morning Edition ran a story on the prestige and secrecy surrounding the inner-workings of the Supreme Court. The commentator described the apparent isolation of the Court from the pressures of social and political views during its deliberative and opinion-writing processes, and the inclinations of certain justices who refuse to read certain newspapers during periods when politically charged opinion are being decided. The reporter explained why, for a variety of reasons, leaks before or after decisions are issued never occur and that insight on those issues only comes from books,speeches and planned interviews of the Justices well after the case is announced. It is rather incredible, the NPR reporter noted, that a government institution of the size and importance of the Supreme Court could avoid leaks even when the Office of the President cannot control 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 Face the Nation and reported the stunning details of an inside Supreme Court”leak.” She reported that Justice Roberts had switched his opinion and that he was originally prepared to declare the law unconstitutional. She described the events and communications between the Justices and their chambers that only insiders would know, and detailed a fierce lobbying effort by several Justices to sway Justice Roberts back to their side. According to Crawford, the leak was an intended one and due to a sense of “betrayal” felt by the conservative Justices and their law clerks. This”high ranking source close to the Justices” offered such stunning and meticulous details that some speculate it was either one of the Justices themselves or, at minimum, someone with express instructions to leak the details of the Chief’s change of mind and the efforts to sway him back.
The larger concern now is whether the leak was made in advance of the public announcement of the Court’s opinion. In the days leading up to the decision, conservatives expressed surprising pessimism over the likelihood the Court would strike down the law as unconstitutional. Such pessimism is bewildering in light of the oral argument questioning by the Justices, and the pundits’ views that the law was on very shaky constitutional ground, particularly after oral arguments were completed.
Regrettably,what Chief Justice Roberts had hoped to gain from his majority opinion and his goal of preserving the institutional legitimacy of the Court as an apolitical, non doctrinal institution now been lost to the selfish, retaliatory, and spiteful acts of several “sore losers” who appear unable to put the law before their own personal views. That a leak of this magnitude might again occur for political or economic gain is a very serious problem. An investigation into this event and perhaps the appointment of a special prosecutor is in order to scrutinize the one institution that is perhaps most well equipped yet ill prepared for such an event.
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.
An institution once vested with the greatest and most important power in our Republic has now become a harshly political and irresponsible group of dogmatic, self-serving jurists whose decisions are predicated more on their political views than long-standing legal precedent. The healthcare legislation is perhaps the most important piece of enacted federal legislation since the Civil Rights Act of 1964 and will have wide-reaching positive affects on millions of people who are uninsured and who place a drain on the U.S. economy. The law was carefully crafted and sheparded through committees and to the floor of both houses and was subjected to years of scrutiny and debate. Everyone who voted for or against the bill, but particularly the drafters, knew then and know now what the bill intended and it was certainly not a tax on the American public 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 or are unaware of the political hypocrisy involved. Romney and the conservatives complain about the tax imposed by the law but fail to mention or explain that he convinced voters in Massachusetts to support a nearly identical state healthcare law. The suggestion that the Obama administration was premeditated in disguising a taxas a penalty is absurd, but the allegation appears to be holding traction with voters nevertheless.
The majority opinion was a deftly executed political compromise designed by Chief Justice Roberts, who perhaps thought he was doing the conservative right a favor by getting the four liberal Justices to sell their souls to the tax devil. He was in fact successful, but, unfortunately,the scope of the Commerce Clause is now in question, as is the integrity of the Supreme Court as an institution.
Whether the consequences of the Justices’ ruling and conduct of the Court was intended or unintended, the political and institutional blow back may be far more severe than anyone could have predicted. It is time for further public scrutiny of the ill-understood institution that until now has been an unchecked pinnacle of our third branch of government which knows only how to scrutinize but which is less likely prepared for the scrutiny required by the circumstances surrounding the healthcare decision.