Stop The Presses: John Roberts to the Rescue

John Roberts to the Rescue

August 13, 2012 by Izzy Moskovitz

Well, well, well, who woulda thunk it? Not me, that’s for sure. You’ll recall my recent piece called “Supreme Court Prepares to Kill Health Care Law” in which I predicted that Anthony Kennedy would be the swing vote on whether or not the Affordable Care Act would be declared constitutional or not. I was right about one part of that, since Kennedy did indeed side with the usual conservative justices on that decision. However, I certainly did not see John Roberts coming at all. That one totally blindsided me, but most definitely in a good way, I’ll admit.

Let’s take a brief trip back in time to revisit the John Roberts story. You may recall that John Roberts was initially nominated by President Bush in 2005 to replacing retiring moderate juror Sandra Day O’Connor, but shortly thereafter, Chief Justice William Rehnquist passed away. Bush therefore decided to have Roberts instead replace Rehnquist, and eventually selected Samuel Alito to replace Day O’Connor.

Roberts served as an ideal choice for Bush, since he had solid conservative credentials, yet at the same time had demonstrated some moderate tendencies in his legal career up to that point. Bush didn’t want to get embroiled in a lengthy and bitter partisan-riven nomination process, and understood -- or at least, his handlers had somehow managed to make it clear to him -- that Democrats would dig in their heels to resist an excessively conservative nominee to replace O’Connor, who at the time represented one of the swing votes on the court, along with Anthony Kennedy.

However, upon Rehnquist’s sudden death, Bush realized -- or more likely was carefully and patiently informed -- that Democrats would now logically shift their primary focus to the Chief Justice position. Thus, the decision was made to nominate the moderately conservative Roberts as the replacement for recently deceased Chief Justice Rehnquist, an evident olive branch of sorts to the Democrats, and at the same time a nominee bound to appeal to the Republican base. Once Roberts was appointed, Bush was freed up to nominate the starkly conservative Alito to replace Day O’Connor, which actually did lead to some verbal scuffling on Capitol Hill before Alito was finally confirmed.

With the new Supreme Court configuration, it was assumed that Kennedy would end up being the swing vote most of the time, since he was generally thought to be somewhat to the left of Roberts. And over the ensuing years, that did indeed often seem to be the case, although Roberts notably sided with progressive jurors in Jones vs. Flowers in 2006. Still, that one court case by itself was not really enough to establish a swing-vote pattern for Roberts.

However, all of that quite clearly changed with Roberts’s upholding of the Affordable Care Act. Writing the majority opinion, in which he was joined by progressive justices Sotomayor, Kagan, Breyer and Ginsburg, the Chief Justice declared that the individual mandate portion of the act, commonly understood to be its key provision, was not unconstitutional, but rather that it was a tax of sorts, despite President Obama’s prior insistence to the contrary. So, according to Robert’s reasoning, if certain US citizens choose not to buy health insurance, then Congress does indeed possess the authority to impose a tax upon them as a penalty. I am not sure how strongly the other assenting jurors actually agreed with Roberts’s specific line of thought, but since they were obligated to have him on board in order to uphold the act, they probably just had to zip their lips and live with it.

I am no legal eagle, but I do agree that the Affordable Care Act’s penalty for not purchasing insurance does indeed seem to be a tax, since you will pay the penalty to the IRS as a part of your tax return. That’s the leverage that the government will essentially have for enforcing the individual mandate. I was never sure how Obama was going to sustain his argument that the non-compliance penalty doesn’t amount to a tax, but I hardly suspected that this matter would end up being the linchpin in upholding the act itself. As Gomer Pyle used to say, surprise, surprise, surprise!

So, there you have it -- John Roberts to the rescue of the Affordable Care Act. He’s hardly a likely champion of progressive values, and surely, his reasons for upholding the act really had nothing to do with any sympathy for the plight of the underinsured and the uninsured in this country. Instead, it seems that he was mostly concerned about preserving the right of Congress to impose a tax under reasonable circumstances. Certainly, as a conservative, Roberts is personally opposed to the Affordable Care Act as a means for addressing the health care needs of the nation. In his heart, he may find the act objectionable, but in his mind, he does not find it to be unreasonable, that is, unconstitutional. And not wishing to “legislate from the bench,” as conservatives popularly charge progressives with doing, he was not willing to cross a certain figurative line in the sand. In that sense, he really did take up a conservative position on the issue, not a neo-conservative one, but a truly conservative one.

With all of that, however, the act is still nonetheless on fairly shaky feet. It can be effectively nullified if Romney is elected president, if Congress gets decisive Republican majorities in both houses of Congress, and if both the White House and Capitol Hill unite in an effort to repeal the act or cut off funding for it. We’ll see what develops. It looks like there’s a whole heckuva lot riding on the results of the November 2012 elections. Be sure to vote.

Let’s keep an eye on John Roberts. He’s still a relatively young guy, and his tenure as chief justice might endure for quite some time. This may not be the last big surprise that we’ll have from him. Call him what you will, but the man does appear to be an independent thinker to some degree. On another note, I must say that he ought to brush up a bit on the whole presidential swearing-in ceremony thing. Hopefully, he’s been practicing.