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What lies behind Chief Justice Roberts’ decision to uphold the Obamacare mandate? AT THE END OF ROBERTS’S first term as chief justice in July 2006, I interviewed him in his chambers at the Supreme Court. Our conversation, which I wrote about in an article for The Atlantic, was wide-ranging, but Roberts returned repeatedly to one theme: his desire to restore the bipartisan legitimacy of the Supreme Court. In Roberts’s view, the Court was losing respect with the public because it issued too many rulings along partisan lines. “I do think the rule of law is threatened by a steady term-after-term focus on five–four decisions,” he said. “I think the Court is also ripe for a similar refocus on functioning as an institution,” he told me, “because if it doesn’t, it’s going to lose its credibility.” Roberts said he had been inspired by the example of his greatest predecessor, John Marshall. “He could easily have got on the Court and said, ‘I’m the last hope of the Federalists: We’re out of Congress, we’re out of the White House, and I’m going to pursue that agenda here,’” he said. “But instead he said, ‘No, this is my home now, this is the Court, and we’re going to operate as a Court, and that’s important to me.’” — Jeffrey Rosen, “Big Chief”
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What lies behind Chief Justice Roberts’ decision to uphold the Obamacare mandate?

AT THE END OF ROBERTS’S first term as chief justice in July 2006, I interviewed him in his chambers at the Supreme Court. Our conversation, which I wrote about in an article for The Atlantic, was wide-ranging, but Roberts returned repeatedly to one theme: his desire to restore the bipartisan legitimacy of the Supreme Court.

In Roberts’s view, the Court was losing respect with the public because it issued too many rulings along partisan lines. “I do think the rule of law is threatened by a steady term-after-term focus on five–four decisions,” he said. “I think the Court is also ripe for a similar refocus on functioning as an institution,” he told me, “because if it doesn’t, it’s going to lose its credibility.”

Roberts said he had been inspired by the example of his greatest predecessor, John Marshall. “He could easily have got on the Court and said, ‘I’m the last hope of the Federalists: We’re out of Congress, we’re out of the White House, and I’m going to pursue that agenda here,’” he said. “But instead he said, ‘No, this is my home now, this is the Court, and we’re going to operate as a Court, and that’s important to me.’”

— Jeffrey Rosen, “Big Chief”

What does it mean to be a successful Chief Justice? “As Roberts recognized, faith in the neutrality of the law and the impartiality of judges is a fragile thing. When I teach constitutional law, I begin by telling students that they can’t assume that it’s all politics. To do so misses everything that is constraining and meaningful and inspiring about the Constitution as a framework for government. There will be many polarizing decisions from the Roberts Court in the future, and John Roberts will be on the conservative side of many of them. But with his canny performance in the health care case, Roberts has given the country a memorable example of what it means to be a successful Chief Justice.” -Jeffrey Rosen,”Welcome to the Roberts Court: How the Chief Justice Used Obamacare to Reveal His True Identity”
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What does it mean to be a successful Chief Justice?

“As Roberts recognized, faith in the neutrality of the law and the impartiality of judges is a fragile thing. When I teach constitutional law, I begin by telling students that they can’t assume that it’s all politics. To do so misses everything that is constraining and meaningful and inspiring about the Constitution as a framework for government. There will be many polarizing decisions from the Roberts Court in the future, and John Roberts will be on the conservative side of many of them. But with his canny performance in the health care case, Roberts has given the country a memorable example of what it means to be a successful Chief Justice.”

-Jeffrey Rosen,”Welcome to the Roberts Court: How the Chief Justice Used Obamacare to Reveal His True Identity”

Why the Obamacare decision was terrible for Romney Judging this the better outcome for Romney means seriously understating just how brutal the law’s rejection would have been for Obama. It would have allowed Romney to argue—to crow to the skies, surely—that Obama’s entire first term had been a giant zero: not only had he been unable to bring the economy back to full strength, but the issue he chose to focus on for the first two years of his term, when the economy was at its worst, had been proven a fool’s errand. -Alec MacGillis, “No, This Was Not The Better Outcome For Mitt”
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Why the Obamacare decision was terrible for Romney

Judging this the better outcome for Romney means seriously understating just how brutal the law’s rejection would have been for Obama. It would have allowed Romney to argue—to crow to the skies, surely—that Obama’s entire first term had been a giant zero: not only had he been unable to bring the economy back to full strength, but the issue he chose to focus on for the first two years of his term, when the economy was at its worst, had been proven a fool’s errand.

-Alec MacGillis, “No, This Was Not The Better Outcome For Mitt”

“Chief Justice John Roberts and Justice Anthony Kennedy, upon whose votes a decision supposedly rests, could do wonders for the court’s reputation by upholding the law or, at the very least, invalidating the mandate in a minimally disruptive way. Precisely because they seem to hold the law in disregard, a judgment to uphold it would signal a determination to separate law from politics. But the opposite is true, as well.” — Jonathan Cohn, “The Justices and Their Agendas”
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“Chief Justice John Roberts and Justice Anthony Kennedy, upon whose votes a decision supposedly rests, could do wonders for the court’s reputation by upholding the law or, at the very least, invalidating the mandate in a minimally disruptive way. Precisely because they seem to hold the law in disregard, a judgment to uphold it would signal a determination to separate law from politics. But the opposite is true, as well.”

— Jonathan Cohn, “The Justices and Their Agendas”

Will the Supreme Court do the right thing? “The policy consequences of overturning the Affordable Care Act, even in part, would be severe: Many millions of Americans would lose access to health insurance while many more would lose crucial consumer and financial protections. For some, it might literally be the difference between life and death.” - The Editors, Judgment Day Photo courtesy of Scene-Stealers
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Will the Supreme Court do the right thing?

“The policy consequences of overturning the Affordable Care Act, even in part, would be severe: Many millions of Americans would lose access to health insurance while many more would lose crucial consumer and financial protections. For some, it might literally be the difference between life and death.”

- The Editors, Judgment Day

Photo courtesy of Scene-Stealers

Will more prominent, respected conservatives come out of the woodwork to defend Obamacare’s constitutionality? This is the fifth. “The individual health mandate surely passes constitutional muster under settled judicial principles. The Constitution’s Commerce Clause grants Congress the authority “to regulate commerce … among the several States.” The Court’s precedents establish without question that Congress may regulate intrastate economic activities that Congress (not the Court) reasonably concludes have a substantial effect on interstate commerce. The existence of such congressional authority is especially clear when the challenged provision itself is part of a comprehensive legislative scheme that regulates interstate commerce.” - Henry Paul Monaghan, A Conservative Law Professor on the Obvious Constitutionality of Obamacare Photo courtesy of the Library of Congress
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Will more prominent, respected conservatives come out of the woodwork to defend Obamacare’s constitutionality? This is the fifth.

“The individual health mandate surely passes constitutional muster under settled judicial principles. The Constitution’s Commerce Clause grants Congress the authority “to regulate commerce … among the several States.” The Court’s precedents establish without question that Congress may regulate intrastate economic activities that Congress (not the Court) reasonably concludes have a substantial effect on interstate commerce. The existence of such congressional authority is especially clear when the challenged provision itself is part of a comprehensive legislative scheme that regulates interstate commerce.”

- Henry Paul Monaghan, A Conservative Law Professor on the Obvious Constitutionality of Obamacare

Photo courtesy of the Library of Congress

What impact will Obamacare have on the deficit? “Critics of the Affordable Care Act keep insisting that the law will increase the deficit. But the best evidence we have, from the most trusted authorities we have, suggests that those critics are wrong – and that the law, if anything, will reduce the deficit. I know that many people find that difficult to believe. But, really, it’s neither complicated nor far-fetched. The law spends a lot of money, in order to make Medicaid available to more people and to provide subsidies for lower- and middle-income Americans buying private insurance. But it also finds a lot of money to pay for those new expenditures—mainly by raising some taxes, mostly on very wealthy people, and then reducing the cost of Medicare, mostly through cuts designed to eliminate corporate welfare or foster more efficient treatment.” - Jonathan Cohn, Today in Hackery: The Latest Attack on Obamacare Photo courtesy of Foreign Policy
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What impact will Obamacare have on the deficit?

“Critics of the Affordable Care Act keep insisting that the law will increase the deficit. But the best evidence we have, from the most trusted authorities we have, suggests that those critics are wrong – and that the law, if anything, will reduce the deficit.

I know that many people find that difficult to believe. But, really, it’s neither complicated nor far-fetched. The law spends a lot of money, in order to make Medicaid available to more people and to provide subsidies for lower- and middle-income Americans buying private insurance. But it also finds a lot of money to pay for those new expenditures—mainly by raising some taxes, mostly on very wealthy people, and then reducing the cost of Medicare, mostly through cuts designed to eliminate corporate welfare or foster more efficient treatment.”

- Jonathan Cohn, Today in Hackery: The Latest Attack on Obamacare

Photo courtesy of Foreign Policy

How appropriate were President Obama’s comments on the Supreme Court? “The intimidation charge was just silly. Obama told reporters he was “confident” the Supreme Court would uphold the Affordable Care Act. That’s the sort of thing politicians say all the time. Intimidating the court would have been threatening to disregard it, as President Andrew Jackson is said to have done in 1832—or, perhaps, hauling the justices before congressional committees, as President-wannabe Newt Gingrich promised to do just a few months ago. At most, Obama was warning that he took the case seriously and was prepared to criticize the court, loudly, if it ruled the law unconstitutional. Surely that’s within acceptable bounds of presidential behavior.” Jonathan Cohn, Yes, Obama’s Comments on the Court Made Sense Photo courtesy of BET
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How appropriate were President Obama’s comments on the Supreme Court?

“The intimidation charge was just silly. Obama told reporters he was “confident” the Supreme Court would uphold the Affordable Care Act. That’s the sort of thing politicians say all the time. Intimidating the court would have been threatening to disregard it, as President Andrew Jackson is said to have done in 1832—or, perhaps, hauling the justices before congressional committees, as President-wannabe Newt Gingrich promised to do just a few months ago. At most, Obama was warning that he took the case seriously and was prepared to criticize the court, loudly, if it ruled the law unconstitutional. Surely that’s within acceptable bounds of presidential behavior.”

Jonathan Cohn, Yes, Obama’s Comments on the Court Made Sense

Photo courtesy of BET

What can an early 20th century Supreme Court ruling on a child labor law tell us about the fate of Obamacare? “The parallels between the child labor issue and the health care issue are remarkable. In both cases, the legislation in question was the product of a decades-long struggle. Universal health care has famously been a goal of American liberals since Theodore Roosevelt proposed it in 1912. The movement to abolish child labor, for its part, stretches back to the first years after the Civil War: When the Knights of Labor was founded in 1869, its constitution included a provision calling for abolition of child labor, and a similar position was adopted by the American Federation of Labor when it was created in 1886. The National Child Labor Committee was organized in 1904, and the first federal law was introduced in 1906. For his part, Roosevelt supported a national study of the problem.” - Andrew Koppelman, The 1918 Case That May Have Foreshadowed Obamacare’s Demise
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What can an early 20th century Supreme Court ruling on a child labor law tell us about the fate of Obamacare?

“The parallels between the child labor issue and the health care issue are remarkable. In both cases, the legislation in question was the product of a decades-long struggle. Universal health care has famously been a goal of American liberals since Theodore Roosevelt proposed it in 1912. The movement to abolish child labor, for its part, stretches back to the first years after the Civil War: When the Knights of Labor was founded in 1869, its constitution included a provision calling for abolition of child labor, and a similar position was adopted by the American Federation of Labor when it was created in 1886. The National Child Labor Committee was organized in 1904, and the first federal law was introduced in 1906. For his part, Roosevelt supported a national study of the problem.”

- Andrew Koppelman, The 1918 Case That May Have Foreshadowed Obamacare’s Demise