The Affordable Care Act, or “ObamaCare” in some circles, stands. That, in itself, is a surprise. What is more surprising is the Justice who wrote the opinion for the 5-4 majority: Chief Justice John G. Roberts. With a deft and cunning stroke, the Chief Justice has simultaneously quelled doubts about the Court’s neutrality, while managing to deny liberals a complete victory.
Chief Justice Roberts is very conservative, and there is simply no doubt about that. It’s not something to be debated, he’s not ambiguous about it; it’s a plain and simple fact. Roberts has worked in Republican Administrations, is involved with the (conservative) Federalist Society in law school, just to name a few indicators of his ideological leanings. Those who are questioning his “activism” and accuse Roberts of “legislating from the bench” ought to examine, in a rational way, what is more likely: That Roberts is a liberal who played turncoat and betrayed President Bush, who appointed him? Or is he a pragmatist who actually believes what he said when he characterized the role of a judge as umpire in baseball? Given his pedigree and background, Roberts is no liberal. The argument (made by many conservatives who, up until yesterday, used to be staunch supporters and admirers of Roberts) that Roberts is an activist judge or is going “out on a limb” are amusing, but off the mark.
It’s far more logical to interpret Chief Justice Roberts’ opinion as the embodiment of his previously stated belief that a judge should be an impartial decision-maker, unconcerned by party politics and ideology. An ump only cares if a play was legal. In the same way, Roberts examined the statute against the Constitution and found that it did not offend. What is remarkable (and worthy of admiration) is that he likely did not personally agree with, or support, the very statute that he upheld.
He didn’t give liberals everything they wanted, either. Although he upheld the statute, Roberts did so for reasons different than those of most liberal-leaning folks; Roberts supported the individual mandate as allowable under the Congress’s Taxing Power in the Constitution, but most progressives feel that the Commerce and Necessary and Proper Clauses are the source of authority for the Federal Government to enact legislation requiring individual Americans to purchase insurance.
So do I agree with conservatives, who would be singing hymns in praise of Chief Justice Roberts had he authored an opinion striking down the individual mandate of the Affordable Care Act? No, I think the Chief Justice made an intellectually honest decision regarding the narrow question of whether the statute was Constitutional (and did not consider, for the purposes of deciding the case, whether the law was good or bad policy, wise or unwise, moral or immoral).
This is also pure speculation, but could he have considered the fallout after a string of cases in the last ten years or so, beginning with the infamous Bush v. Gore and up until the fairly recent Citizens United? Whatever the nuances and details contained in these oft-maligned opinions, the cumulative effect is that these controversial decisions have shaken the public’s confidence in the Supreme Court as a neutral and impartial arbiter of Constitutional disputes. Instead, many have recently come to view the Supreme Court as a partisan body just like the other two branches of government, committed to implementing and furthering a particular ideology.
Although Roberts did not uphold the law on the basis of what liberals and progressives would have preferred (i.e. the Commerce Clause, Necessary and Proper Clause), the statute still stands because of his vote. Perhaps many voices in the growing chorus questioning the impartiality of the Court will be silenced by Roberts’ opinion. Maybe the perception will begin to change, now that this clearly conservative Chief Justice, appointed by a Republican President, has voted to uphold a Democratic President’s signature legislative achievement.