via Josh Gerstein and Darrenn Samuelsohn, Politico
Chief Justice John Roberts promised not to pitch or bat, but he sure threw a curve ball [June 28, 2012].
By voting to uphold President Barack Obama’s health care law, Roberts shocked conservatives who thought they could rely on him to help sink Obama’s signature legislative accomplishment.
Instead, Roberts’s unexpected 59-page opinion will go down as his most significant, legacy-defining act since he joined the court in 2005 — and history ultimately could record it as the most consequential opinion of his tenure as chief justice.
(See also: Full coverage of the health care reform decision)
His decision to side with the liberals on a 5-4 vote for the first time narrowly averted a replay of Bush v. Gore, which brought the president who nominated Roberts to power. That ruling, which split along ideological lines, divided the nation and threatened the court’s reputation for hovering above partisan strife.
It was the court’s reputation as an impartial arbiter of the law that Roberts promised to protect during his confirmation hearings, pledging “to call balls and strikes and not to pitch or bat.” And on Thursday, the decision Roberts authored assured that no one could accuse his court of taking a politically partisan stance on Obama’s most sweeping achievement.
“The ruling is institutionally courageous since it allows the court to stay clear of undermining the majority as expressed in Congress and therefore does not repeat the error of Bush v. Gore,” wrote Pepperdine University law professor Douglas Kmiec, a rare conservative supporter of Obama in 2008 who served as his ambassador to Malta.
This was Roberts’s moment to leave his imprint on the court, and he seized that moment. His action did not simply cross ideological lines: Roberts appointed himself the architect of the majority opinion holding that the landmark health care law could be justified as an exercise of Congress’s power to tax.
His ruling left liberal legal scholars and Obama supporters downright giddy.
“This case marks the birth of the Roberts court,” said Adam Winkler, a UCLA law school professor. “For years, the court has been thought to be Anthony Kennedy’s court because Kennedy is the swing vote. [The health care] decision shows that this is truly John Roberts’s court.”
Roberts’s opinion “avoided a cascade of criticism of the court for judicial activism,” Winkler said. “Roberts peered over the abyss and decided he didn’t want to go there.”
By contrast, many conservative legal thinkers felt betrayed. The specter of former Justice David Souter — appointed by the first President Bush — still haunts conservatives. The jurist described as a “home run” for their cause instead enraged them.
There were few signs that Roberts, who has a solidly conservative voting record, had triggered Souter-like remorse on the right. Still, the anger over the chief justice’s dalliance with the left was palpable.
“You give people slack for a one-off mistake when it’s minor stuff,” Chapman University law professor John Eastman said. “When it is the game and you’re within the 2-minute warning and you do a one-off by handing the ball to the other side, you don’t recover.”
The National Review posted an online editorial titled, “Chief Justice Roberts’ Folly.”
“If Roberts believes that this tactic avoids damage to the Constitution because it does not stretch the Commerce Clause to justify a mandate, he is mistaken,” the editorial said. “The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.”
While many prominent conservatives were privately irate about Roberts’s move, few Republican lawmakers were willing to criticize him publicly. The more common public reaction was one of surprise and disappointment.
“Shocked. Stunned,” Sen. Mike Lee (R-Utah) said of his feelings about the chief justice’s ruling, which Lee witnessed firsthand from one of the court’s front rows.
“I respectfully but forcefully disagree with his analysis. I just think he was mistaken,” said Lee, who was a law clerk to Justice Samuel Alito during Roberts’s second term on the court.
Sen. Jim DeMint (R-S.C.), a tea party favorite, called Roberts’s ruling “a little convoluted logic in my mind.”
Despite the shock and disbelief from the right, Roberts’s ruling was far from a wipeout for conservatives — at least on its face. By upholding the health care law under Congress’s taxing power, he handed a gift to Republican politicians and presumptive GOP presidential nominee Mitt Romney, who wasted no time in jumping on the tax-hike theme.
“Obamacare raises taxes on the American people by approximately $500 billion,” Romney said in a statement delivered on a Washington rooftop overlooking the Capitol hours after the court’s ruling.
“The Supreme Court said it is a tax. … If Obamacare had been presented in the first place as a tax, I don’t think it would have ever passed. So, it was sold as a lie,” DeMint said during an appearance at The Heritage Foundation. “If Americans can see a tax, they’re more likely to resist it. … It gives America, I think, a much more compelling reason to get engaged in this November election.”
For conservative legal activists, Roberts’s peace offering was his acceptance of the core argument against the health care mandate: that Congress’s power to regulate interstate commerce doesn’t allow the federal government to force people to buy things like health insurance.
”Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority,” Roberts wrote. “Every day individuals do not do an infinite number of things. … The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent.”
When assessed along with the dissent from the other Republican-appointed justices, Roberts’s conclusion that Congress’s powers are limited under the Congress Clause appeared to signal a five-justice majority on the court favoring more robust policing of government actions with a dubious tie to commerce.
However, within minutes of the court’s release of its opinion, a fight broke out among legal scholars about whether Roberts’s stand on the Commerce Clause was a meaningful victory for conservatives or a glinting bauble designed to distract them while they had their pockets picked.
“In the future, politicians who try to pass a mandate will see it go over like a lead balloon because from the very first second it will be introduced as a tax,” said David Rivkin, one of the conservative lawyers who led the challenge to the health law. “It was intended as an accountability-infusing exercise by the court. … This case will be forever cited to say that you cannot regulate individuals because they exist.”
Washington Post columnist George Will called Roberts’s ruling both a “substantial victory” and a “considerable consolation prize” for conservatives.
But others on both the left and the right saw the affirmation of Commerce Clause limits as largely symbolic — and something of a fig leaf.
“I never thought such a ringing endorsement of everything I believe on what I felt was a central issue in the case could feel so hollow,” said Ilya Shapiro, a scholar at the libertarian Cato Institute. “I think Roberts was thinking in grand terms. … I don’t think he was playing for popularity or trying to affect politics but simply, I think, was trying to shape a judicial legacy.”
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