Justice Roberts’ Curious Defection on Health Care Law

Chief Justice John Roberts stunned conventional wisdom when he wrote the majority 5 to 4 opinion upholding the mandatory purchase of health insurance provision in the Affordable Care Act. Roberts caused segments of the media to rush to report that the linchpin of the healthcare legislation had been toppled when he opened with a statement that the interstate commerce clause of the Constitution did not apply; however, the majority opinion found that the mandatory purchase would stand because it was a tax and Congress has the right to levy taxes. Jonah Goldberg has written that Roberts had made his decision first and then searched to find a justification for it, which was that it was a tax.

There has been much speculation about why Chief Justice Roberts voted as he did, with the dominant theory being that he was concerned about the long-term legacy of the Supreme Court, especially with a recent poll showing that only 44 percent of the public had a favorable impression of the court; also, close court watchers were beginning to describe the Roberts’ court as the most politically partisan in history, with four conservative justices frequently voting as a bloc and Justice Anthony Kennedy often joining them.

A story now circulating is that Roberts had changed his mind shortly before the decision was announced, because he  felt that justices Kennedy, Scalia, Alito and Thomas had gone too far by wanting to overturn the entire Affordable Care Act. Such a result would have meant that the five justices appointed by Republican presidents voted to overturn and the four justices appointed by Democratic presidents voted to uphold. One Supreme Court reporter described such a result as potentially having the effect of a thermonuclear blast in the political realm. According to a New York Times reporter, it was Justice Clarence Thomas who leaked the story about Roberts’ change of position and that he, Thomas, had strenuously tried to disuade Roberts from voting to uphold.

It is curious how the impression of Chief Justice Roberts has changed on the respective ends of the political ideological spectrum. Many liberals are praising him and contending that he had fulfilled his promise in his confirmation hearings that he would be like a baseball umpire calling balls and strikes, and not on the basis of political ideology. Many conservatives, on the other hand, want to throw Roberts under the bus. Both groupings are overreacting, as Roberts has converted the Supreme Court into a conservative political fortress, marked most dramatically by the Citizens United decision. 

By labeling mandatory purchase a tax, Chief Justice John Roberts has handed the Republicans a convenient talking point: Republicans can and are claiming that Obama has broken his pledge not to raise taxes on the middle class. Political hay is also being made by Obama’s prior insistance that mandatory purchase is a penalty or fine and not a tax. Since we don’t view money we pay for traffic violations as a tax but view it as a penalty or fine, it could be argued that mandatory purchase of health insurance is of the same character.

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