In light of the Affordable Care Act being upheld by the Supreme Court today, a loyal reader wonders why the conservative, Bush-appointed Chief Justice John Roberts would turn out to be the fifth vote that kept the major provisions of the law intact. My loyal reader forwarded me a link to this piece at The Nation, characterizing it as an “interesting take on the Chief Justice’s decision.” It may be interesting — at least as interesting as Ann Coulter squawking all day on Twitter SEE? JOHN ROBERTS IS A LIBERAL!!! I TOLD YOU SO!!! But unfortunately it is also just as wrong:
The most surprising thing of all, though, is that in the end, this ultraconservative Court decided the case, much as it did in many other cases this term, by siding with the liberals.
Siding with the liberals? What liberals? President Obama? Hahaha. Siding with the right-wing Dems in the Senate who held the House’s health care bill hostage to all kinds of anti-abortion wingnuttery and health industry profits? (The House bill, as astute readers may recall, had a public option — a Medicare buy-in — that the “liberal” Barack Obama had already nixed in secret negotiations with insurers.)
The Affordable Care Act was based on Republican model legislation. It is at its very core conservative: an entrenchment and endorsement of private profit over human health. There is nothing “liberal” about this paradigm, except perhaps in the laughable sense of DEMOCRAT = LIBERAL.
I was sincerely hoping SCOTUS would overturn the law, especially the mandate. Overturning it was the only realistic hope of moving the country closer to a single payer system, instead of taking us further away—and I believe that Chief Justice John Roberts is smart enough to see that.
I’m reading this sort of analysis around the internet from a variety of people so I’m guessing this is a fairly good grasp of just how wily John Roberts is:
[T]here might be an even bigger win engineered by Roberts here. Remember your Marbury v. Madison. In that case, Chief Justice John Marshall gave President Madison what he wanted. But while giving the President what he wanted, Marshall established the right of judicial review and that ended up being a much bigger deal than Marbury’s silly appointment.
Here, let’s not forget, Roberts said that this was beyond the power of the Commerce Clause. When was the last time that happened? It’s a huge limitation on the power of the government under the Commerce Clause, and we might be seeing the ripple effects of that for years…
If this is going to be the Chief Justice’s legacy, it is a pretty good one. The talking heads are reacting to the politics of it, but for the Court, this is all about legitimacy. It’s a legitimacy that the Court lost with Bush v. Gore. But now we can clearly say that Bush v. Gore was “the other guy.” That was the Rehnquist Court. And Rehnquist isn’t here anymore.
This is the Roberts Court. And here, we’ve got a pro-business Court that interprets laws as constitutional when it can. Roberts found a way to keep this law in-bounds — without abandoning his conservative principles on the expansion of federal power. The conservatives “disappointed” with Roberts today are being silly and can’t see the long game here. The Commerce Clause has been limited AND the Court looks non-partisan. Beat that with a stick.
See also Stephanie Mencimer:
The ever-powerful US Chamber of Commerce, whose legal eagles are in the midst of one of the most amazing runs of success in Supreme Court history, did not oppose the law. Like the insurance industry, the Chamber did not take a position on the individual mandate or other parts of the law. Instead, it merely urged to court to act quickly to settle the outstanding legal issues. Like AHIP, the Chamber argued that the fate of the mandate should be bound to that of the other insurance reforms—if one went, the other would have to be scrapped, too. Other business groups also avoided the fight or signed up for the other side. The hospital industry supported upholding the law’s Medicaid expansion. The pharmaceutical industry’s lobbying arm, PhRMA, which timidly supported the original bill, didn’t weigh in at all.
So business wasn’t really a part of the anti-Obamacare coalition. Instead, the primary legal challenges to the ACA came from states headed by right-wing (and often unpopular) ideological governors, and the states’ outside support came from equally ideological advocacy organizations, such as the Family Research Council and fringe physicians’ groups. But their lack of support from the business community is notable, and it may be the one reason why Justice John Roberts decided the case the way he did.
Roberts is conservative, but not in the same way as Justices Antonin Scalia or Clarence Thomas. He’s more of a white-shoe law firm kind of guy, which is fitting for someone who was a partner at the corporate law firm Hogan & Hartson (now Hogan Lovells). As such, he’s got some of the pragmatism of a corporate lawyer, and his sympathy for the business community’s arguments has been plain from the time he was first confirmed. (See: Citizens United.) If the US Chamber of Commerce didn’t see fit to argue that the ACA was unconstitutional, it’s not surprising that Roberts didn’t, either.
Unlike his right wing brethren on the Court, it would appear that Roberts is ideological to the extent that ideology serves money. Most of the time that makes a majority with Thomas, Alito, Scalia and Kennedy. In this case, due to the nature of the law and its goals, it swung the other way. But Roberts wasn’t being inconsistent. He delivered.
The Supreme Court is where the real conservative revolution — the corporate revolution — is going to be taking place over the next several years. Today Chief Justice Roberts went a long way toward ensuring that it will have the legitimacy to get that done.
So just to recap:
Q: Why did Roberts do it?
A: Because he is a conservative. And not your typical dumbass conservative, either.
Let’s not lose sight of what liberal health care reform would actually look like.