Politics

Will Chief Justice John Roberts Uphold ObamaCare?

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Two weeks from today, the U.S. Supreme Court will begin hearing oral arguments over the constitutionality of the Patient Protection and Affordable Care Act. Writing in The New York Times, Adam Liptak offers an interesting look at the various judicial and political views jockeying for control inside the mind of Chief Justice John Roberts, whose vote on the health care law is most likely up for grabs. As Liptak writes:

The case will require the chief justice to choose between two competing instincts.

On the one hand, he views himself as a steward of the court's prestige and authority, and he has called for incremental decisions from large majorities rather than broad but sharply divided rulings….

At the same time, Chief Justice Roberts has embraced an array of assertive judicial projects that have interpreted the Constitution in ways that have fundamentally reshaped American law. The court he has led since 2005 has cut back on campaign spending limits, gun control laws, procedural protections for criminal defendants and the government's ability to take account of race in decisions about employment and education.

Read the full story here.

In an August 2011 column, I examined some of the conservative legal arguments in favor of upholding the individual mandate and concluded that Roberts was the one right-leaning justice most likely to find such arguments persuasive. Here's part of my case:

Remember that during his Senate confirmation hearings, Roberts stressed his belief that the Supreme Court should practice "judicial modesty," a respect for precedent and consensus that he extended all the way to the abortion-affirming Roe v. Wade (1973), which he called "the settled law of the Land." Roberts may approach the Court's expansive Commerce Clause precedents in the same way and vote to uphold the individual mandate as a deferential application of that "settled law."

There's also Roberts's expansive view of congressional power to consider. This was exhibited most recently in U.S. v. Comstock (2010), where he sided with the Court's liberals and endorsed a sweeping interpretation of the Necessary and Proper Clause that allowed federal officials to order the indefinite civil commitment of "sexually dangerous" persons who had already finished serving their prison sentences. The Obama administration's legal defense of the individual mandate rests, in part, on an equally broad reading of that same clause.

In other words, a five-vote majority against the health care law is not a sure thing.

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  1. Oh, yeah. Take my word for it: upholding the mandate is the easy decision, especially if you are a judicial modestitarian. Not hard at all, at all, to read prior case law as supporting the individual mandate.

    Overturning the mandate will require “making new law”, in the form of (at a minimum) stating a newly discovered limit on Congress’s Commerce Clause powers.

    Which, BTW, have been read so broadly that any new limit is bound to cast doubt on the Constitutionality of some existing regulatory regimes.

    I am not optimistic.

    1. I am just cynical enough to be slightly optimistic. I think Roberts and the rest of our robed overlords are keenly aware of the need for legitimacy of the court in the public’s eyes. And I think they are also keenly aware and lament the loss of public respect courts suffered because of judicial overreach and unpopular decisions in the 1960s and 70s.

      It is no coincidence that the Court “discovered” that the 2nd Amendment means what it says at about the same time the vast majority of the public came to the same conclusion.

      Upholding the mandate is a lot harder than you think because doing so is going to be unpopular with a pretty solid majority of the country. Roberts and especially Kennedy are politicians. They know which way the wind blows.

      The challenge is the strike down the mandate in an opinion that can be later ignored and limited to its facts.

      1. You my friend are a fucking optimist! They’ll put on a good show but consider the matter rubber stamped. Pelosicare here we come!

        1. Well said, fish.

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  2. At the same time, Chief Justice Roberts has embraced an array of assertive judicial projects that have interpreted the Constitution in ways that have fundamentally reshaped American law. The court he has…cut back on campaign spending limits, gun control laws, procedural protections for criminal defendants and the government’s ability to take account of race in decisions about employment and education.

    Seems to me that campaign spending limits, gun control laws, and the government taking account of race in decisions about employment and education were attempts to fundamentally reshape American law.

    If Roberts helped smack those down, then he was on the side of incremental change on those counts, too. ObamaCare isn’t incremental change either. It’s an attempt to fundamentally reshape American law. I’m more optimistic about Roberts after hearing this than I was before.

    1. It’s an attempt to fundamentally reshape American law.

      From a Constitutional perspective, its really not. Its a pretty straight line from current case law to a decision upholding the mandate.

      Any number of cases basically say that there is no such thing as non-interstate commerce. Its all commerce that Congress can regulate.

      Thousands and thousands of pages of federal regulation are basically mandates to buy a good or service you would not otherwise purchase. That’s all the individual mandate is. The trick will be for the Court to say that all those mandates are just fine, but this one isn’t.

      I think John’s right: if the Court overturns this, it will be because of the political calculation that upholding the mandate will mean a loss of its own legitimacy.

      1. From a Constitutional perspective, its really not. Its a pretty straight line from current case law to a decision upholding the mandate.

        Well then I’m back to my standard fall back position: ObamaCare sucks even if it is constitutional.

      2. I don’t think it’s that simple at all. Sure, there are lots of purchase mandates, but all of them are conditional upon already being active in a market which the mandate is designed to regulate.
        The insurance mandate is unconditional. It is being imposed upon people who not active in the health insurance market, as a means of regulating the health insurance market.

        This is a big reason why the government has had to argue that everyone is in the health care market from birth. Because they have to claim that everyone is already IN the market being regulated.

        Their case hinges on convincing five justices that being born effectively engages a person in interstate commerces from birth.

        Otherwise, you have unconditional mandates, which is effectively unlimited federal police power.

        1. Otherwise, you have unconditional mandates, which is effectively unlimited federal police power.

          You mean they’re going to rescind unlimited police power?

          Wow. Now that’s news.

  3. I wonder if Roberts would respect the Fugitive Slave Act of 1850 or the Dred Scott decision.

    Respect for precedent is a dangerous thing.

    1. Robert’s morality, like most Americans, has been replaced by respect for the law- no matter how immoral the law is.

  4. I refuse to torment myself by thinking about this. The bad will be upon us soon enough.

  5. Does anyone else think it’s slightly insulting that everyone assumes all four “liberal” justices will vote to uphold the mandate?

    Surely it’s *possible* that a couple of them might see the liberty interest in not compelling people to make purchases because it furthers the regulation of a commercial activity.

    1. It might be a little presumptuous, but I don’t think it’s insulting.

      If one of them went against the mandate, and the mandate were struck down, we’d never hear the end of the howling.

      People think putting an obedient liberal on the SC is the whole purpose of voting Democrat for president.

      1. And many feel the same way about voting Republican. Right now, there are more conservatives on the court than liberals.
        My bet is they strike it down.

        1. I think they let it ride. They say that if Congress wants to overturn it, they’re free to do so.

          I think it’s an interesting wrinkle in the upcoming election. If it’s struck down before the election, it may not give Obama much of a boost, but it might give him an opportunity to present himself as someone who’s doing everything he can for the little people…

          If they let it stand though? ObamaCare is still unpopular–with swing voters, and that’s what counts. If the SC let’s it stand, a lot of those swing voters are going to blame Obama for that, and even if RomenyCare is bad, they’re gonna see him as a favorable alternative to Obama.

          1. They say that if Congress wants to overturn it, they’re free to do so

            So SCOTUS will allow,/b> Congress rescind law passed by Congress?

      2. I’m not entirely sure about that. Sure there would be a partisan faction that would howl, but let’s remember that unlike campaign finance laws, the mandate is very unpopular.

        The howling would not be nearly as intense. The most likely reaction from the left would be “well, I guess it’s single-payer then”.
        Not that they’ll have a chance at that any time soon.

        Only the die-hard partisans would really be upset, because it would overturn Obama’s “legacy” or whatever.

        1. The left is willing to sell just about every principle out–so long as you support their president, everything is supposed to be okay.

          They were that way with Clinton. They’re that way with Obama. They think that’s their purpose, their very reason for existence. It wouldn’t be as bad as if the court overturned Roe v. Wade, but it would be a good, long way in that direction.

          I don’t think we’ll find out, though. I think they’re all gonna do as they’re told.

          1. The “left” isn’t as unified behind Obama as they were in 2008.

            Many, perhaps most, progressives don’t like the mandate, would prefer single payer, and feel betrayed and let down on many others. I don’t think they are particularly ecstatic about his economic policies either. Most of them feel he hasn’t gone far enough and blame him for continuing the bailouts of the banks. For one thing, he hasn’t repealed the Bush tax cuts, and they would like to see a lot more in the way of new taxes than that.

            1. …they would like to see a lot more in the way of new taxes…

              So give me a second term already.

    2. Does anyone else think it’s slightly insulting that everyone assumes all four “liberal” justices will vote to uphold the mandate?

      Have you ever met a liberal that didn’t believe in unlimited federal police power, when push comes to shove?

      Perhaps such liberals exist, you know like albinos or something. But Albino Liberals are odd outliers if they even exist.

      Of course, today with religious left sensibilities run amok, and in direct competition with little of nothing besides religious right sensibilities — we’ve reached the age where it is sometimes insulting if we call a kettle “black”.

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