Volume 2, Issue 3 (Originally Published 6 August 2012)
On 28 June, in a landmark and surprise ruling that is, literally, of life and death importance to many Americans. The US Supreme Court upheld President Obama’s Affordable Care Act of 2010. Paradoxically, if there is a single person to thank for the fact that the US now extends health care to all citizens, it is the Republican-appointed chief justice, John Roberts (who delivered a public lecture at MLS in July 2010). In National Federation of Independent Business v Sebelius, the other Republican-nominated, ‘conservative’ justices voted to defeat the Act, while the four justices appointed by Democratic presidents voted to uphold it.
Chief Justice Roberts wrote the majority opinion, in which the law was held to be a valid exercise of Congress’s power to tax. He re-framed the debate over health care as a debate over increasing taxes, saying that Congress was ‘increasing taxes’ on those who choose to go uninsured, as opposed to ordering individuals to engage in commerce, which would be against the Constitution.
Ronald Dworkin explains, “Our eighteenth-century constitution gives Congress only a limited number of legislative powers set out in an enumerated list; no congressional statute is valid unless it can be defended as the exercise of one of those listed powers”.
Chief Justice Roberts also wrote that judges “possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices”.
Notwithstanding this claim of judicial neutrality, Dworkin and other experts believe that the Supreme Court is, and has long been, politically activist. Moreover (Dworkin again) “There is persuasive internal evidence in the various opinions, and particularly in the joint dissent, that [Roberts] intended to vote with the other conservatives to strike the act down and changed his mind only at the very last minute”.
The surprise decision by the chief justice has triggered speculation by conservative talking heads as to his mental and physical health. Notorious shock jock Rush Limbaugh bellowed that the Internal Revenue Service “has just become Barack Obama’s Domestic Arm.” Republican Congressman Phil Gingrey of Georgia announced in a radio interview that he “would like to pour a beer over the head of Chief Justice Roberts.”
Dworkin’s reaction is more nuanced, and more worrying. He says that Roberts made a calculated decision to yield to the status quo in order to provide coverage and credibility for the Supreme Court when, in October, they confront “the large number of politically charged cases scheduled for hearing.”
Writing in The New Yorker, Jeffrey Toobin agreed; “By siding with the liberals, Roberts insulates himself from charges of partisanship for the foreseeable future. This may be worth remembering next year, when the Court, led by the Chief Justice, is likely to strike down both the use of affirmative action in college admissions and the heart of the Voting Rights Act of 1965.”
Will the chief justice loftily declare himself and his colleagues aloof from policy-shaping then? Stay tuned.