Writing at Forbes, Daniel Fisher rejects the "informed speculation" that ObamaCare's individual mandate is in trouble this Thursday at the Supreme Court and argues instead that the law will be upheld thanks to the support of Chief Justice John Roberts. Fisher writes:
My theory remains that Roberts and Kennedy will balk at overturning the healthcare act, especially just four months from a national referendum on the same question. Roberts is a true conservative who believes in the separate roles of the three branches of government. Legislating is the legislature's job, subject to the corrective action of the voters. Obamacare is legislation, however flawed it may be, and it's up to the voters to express their opinion of the 2,000-page law if they don't like it in the next presidential election.
Fisher also argues that if Roberts does decide to uphold the mandate, "he has a road map for that decision in U.S. District Judge Jeffrey Sutton's concurrence to the Sixth Circuit's decision upholding Obamacare almost precisely a year ago." Sutton, a former clerk to Justice Antonin Scalia, not only rejected the legal challengers' main Commerce Clause arguments against the mandate, he also held that the principle of judicial restraint required the federal courts to defer to lawmakers on this contentious matter. "Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation," Sutton wrote, "allowing the peoples' political representatives, rather than their judges, to have the primary say over its utility."
Like Fisher, I was also struck by Sutton's ode to judicial restraint and the possible influence it might have on the Court's conservatives. And as I argued in an August 2011 column, the vote of Chief Justice Roberts "is the most likely to echo Sutton's."
But there have also been some very interesting developments since I wrote those words, developments that Fisher's Forbes piece does not grapple with. During the ObamaCare oral argument in March, Chief Justice Roberts actually tackled the issue of judicial restraint head on. And his words that day did not bode well for the survival of the individual mandate.
As I explain in my July cover story on the ObamaCare legal challenge, when Solicitor General Donald Verrilli suggested that the Supreme Court would be guilty of conservative judicial activism if it nullified the individual mandate, Roberts immediately swatted away the idea. Then a few minutes later he brought the issue up again, this time accusing the federal government of being the ones seeking an activist ruling. "It would be going back to Lochner if we were put in the position of saying, no, you can use your commerce power to regulate insurance, but you can't use your commerce power to regulate this market in other ways," Roberts said. "I think that would be a very significant intrusion by the Court into Congress' power."
Lochner refers of course to the 1905 decision where the Supreme Court struck down a state working hours regulation for violating the unenumerated right to liberty of contract. It's a case that continues to stand as a symbol of judicial activism for many legal thinkers on both the left and right, including Roberts. So by throwing that controversial ruling back in the government's face, Roberts offered what could turn out to be a preemptive counter-attack to the inevitable charge of judicial activism that will follow in the wake of a decision invalidating the individual mandate. If Roberts does vote against ObamaCare, I wouldn't be surprised if he employed this very argument.
We'll find out for sure on Thursday.