Minutes after today’s health-care decision comes down from the Supreme Court, a conservative legal scholar I know emails: “Just beginning to read [Chief Justice John] Roberts’s opinion, which may be deservedly remembered as a great act of judicial statesmanship.” I concur. Roberts and the four concurring justices have managed to be neither a rubber stamp nor a heavy hand. Improbably, they have written a decision that everyone can live with.
There is lots of good legal writing in the various opinions issued today; the Supreme Court is at the top of its game. The big story, though, is that what prevailed was not any particular legal argument but a kind of meta-doctrine about what the court should and shouldn’t be in the business of doing. As the majority ruling pointedly notes, the court’s first job is to look for ways to uphold democratically enacted statutes, not for ways to knock them down. If it can plausibly construe a law in a way that’s constitutional, it usually should.
Of course, “usually” doesn’t mean “always.” But in this decision the court, and Roberts, avoided the swing-for-the-fences activist temptation which they have succumbed to recently on campaign finance. In the health-care case, Roberts is behaving more like the cautious conservator of the court’s institutional role that he promised to be. Let’s hope we see more of this chief justice, and less of the guy who wrote Citizens United.
How will it play? Well, I think.
If I’m a liberal Democrat, I’m obviously relieved that the Affordable Care Act (ACA) was upheld. According to the court, the controversial requirement that everyone get health insurance or pay $700 to the IRS is constitutional as an exercise of Congress’s taxing power. Which is OK by me, because, whatever Congress may have called the mandate, it looked, walked, and quacked like a tax. Phew.
If I’m a moderate health-care reformer, I’m also relieved. The ACA represented the country’s best shot at keeping a private insurance industry alive and making incremental but meaningful reform. Had the ACA gone down in flames, the health-care system might have suffocated on its own dysfunctions before another reform could be passed in, say, 2030.
If I’m a libertarian, I hardly came away empty-handed. By ruling that Congress can’t use its commerce power to command people to do things, the court imposed a new limit on the federal government’s power, a constraint which is likely to bear fruit in the future. It also placed a new limit on Congress’s power to force states to do things. I’ve got a lot to work with here.
If I’m a partisan Republican, my feelings are mixed. I lost a short-term political blow to President Obama, but now I’ll have the mandate–revealed as the tax it is–to rail against. It’s a political weapon with years of effective life. Probably a net plus, on balance.
If I’m a left-wing health reformer, I, too, am ambivalent. The ACA props up the private insurance market, which I wish would hurry up and implode so we can replace it with national health insurance. But I’m glad Obama didn’t get creamed.
Legally, all of my hypothetical multiple personalities got a clear message from the Supreme Court, and from its recently wayward chief justice, that the court understands its job in a democratically healthy way. Politically, we got an outcome that makes no radical moves and gives everyone something to be thankful for.
“Great judicial statesmanship”? May well be. In any case, a good day for the court and the country.