Roberts' Obamacare decision was not about legitimacy
Jun 29, 2012

Roberts' Obamacare decision was not about legitimacy

With the US Supreme Court's historic decision to let the Affordable Care Act stand has come much speculation on the motives and rationale behind Chief Justice Roberts' decision to side with the four liberals on the court and uphold the law. Much of that speculation seems to be outright bad, and a simpler explanation seems to fit.

The first point that is agreed on by most (including myself) is that the court is deeply political. Most of the really big decisions in the last twenty years have been decided 5-4 or 6-3, and are divided along strict ideological lines. Citizens United (which ushered in the SuperPAC era of campaign finance) and Bush v Gore are the more infamous examples, but this extends through many of the key rulings. Right now, the court has five conservatives and four liberals which are pretty reasonable predictors of their actions. The fight on gay rights, for instance, may come down to the hope that one of the conservative justices, Kennedy, who is soft on this issue, will flip and join the other liberals. Due to its inherently political nature, since Roberts did not bat for his team, as it were, the speculation is on what the political reason was that Roberts did flip, with the assumption being that constitutional validity in some sort of abstract sense could not be it.

Some of the speculation has been along the following lines. They argue that Roberts' ruling was an attempt to restore a sense of legitimacy to the court that had been lost due to Bush v Gore. Or that this will give them cover for more consequential decision in the future. Take digby's analysis (the usually excellent progressive blogger):
I don't suppose we'll ever know what made him vote the way he did. But I personally wouldn't be surprised if he was worried about the court's legitimacy --- and therefore its power --- if they were to strike this down. There's been an awful lot of talk about the loss of faith in institutions and the destruction of democratic norms in recent times, some of which was perpetrated by the court itself. Bush vs Gore was a blight that cannot be erased and Citizens United was the latest in a series of rulings that are threatening our democracy in a very fundamental way. To strike this down in a 5-4 decision in this political climate (even if it were legally reasonable) could very well have sealed the belief that the Court is a partisan power tool. I would guess Roberts prefers to have his era be thought of as a legitimate conservative juris prudential revolution than as mere hackish devotion to the parochial political concerns of the day. He's willing to take the time to build that slowly, one precedent at a time.
This upheld-Obamacare-to-maintain-legitimacy hypothesis is also prevalent on the right. Take, for instance, the view from Erick Erickson, one of the right wing blogosphere's biggest movers and shakers:
First, I get the strong sense from a few anecdotal stories about Roberts over the past few months and the way he has written this opinion that he very, very much was concerned about keeping the Supreme Court above the partisan fray and damaging the reputation of the Court long term. It seems to me the left was smart to make a full frontal assault on the Court as it persuaded Roberts.
The problem with these theories is that the fate of Obamacare is too big for that. Ignoring the long term effects of Citizens United, this decision is the most important of the last decade and will directly influence an entire country, and Obama's legacy to boot. A rationale based on this being some pregame maneuvering for bigger things to come simply does not stand because this is the real deal; this is the type of decision to which Presidents stack the Supreme Court for. All the building up of legitimacy, of reputation, and of power is done for moments like these so that the Court has the established capital to be able to decide appropriately on a decision like this. The idea that this move was part of some larger game seems to assume there is a forest in a small glade with only one big tree.

My guess - and it really is nothing more than that - is that Roberts is genuinely okay with the ideas behind the law. He is a conservative, but hardly a Republican in the sort of drooling, gun-toting, Neanderthal sense that Jon Stewart might portray. Devilishly smart, and with a lifetime of dedication to contemplating the optimal path for society, Roberts is surely aware that for a decade the individual mandate was the Republican answer to Hilarycare and a public option or universal healthcare. Perhaps he always agreed with it. Yes this idea is out of vogue with the present GOP establishment, but the intellectually honest ideological conservative who accepts things like Social Security and Medicare can certainly accept the idea of a mandated private insurance market for healthcare.

This decision shall surely be a huge part of Roberts', and his Court's, legacy. While on other decisions he may - I don't know - let a more partisan side of himself show, I am not surprised that he would check that at the door for a decision that is so monumental. In the end, I think he did what he did because he thought it was right to uphold the law.

A not so silver, silver lining:
The GOP has been quick to try and find a silver lining in the face of such a huge loss for them. The upside is that the Commerce Clause was able to be maintained as is without the expansion into a "non-activity" like not buying health insurance. It was upheld under its classification as a tax, not as a regulation of inter-state commerce. Conservatives like the idea of minimal Congressional powers (as it necessarily limits the ability of government) and so they are pleased that the Commerce Clause was not expanded. Again, this is imagining a whole forest of bigger trees out there that doesn't really exist. The reason conservatives want a minimal Commerce Clause is precisely to be able to avoid these kinds of monumental pieces of legislation like Obamacare. Conspiracy theories aside, there is not some bigger legislation just around the corner in the minds of lefties like myself that plan to regulate some other form of inactivity. Universal healthcare - what Obama should have been - would not use the commerce clause regulating non-activity as it provides a service paid for by a tax. Greenhouse gas emissions would regulate a definable activity. Etc. Healthcare was always special, there really is no other part of our economy like it, and no future legislation that I can think of would aim to regulate a non-activity through the commerce clause. The conservatives lost the biggest judicial case of the last decade and are consoling themselves with an entirely empty restriction on Congressional powers. 

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