Random Reflections On the ObamaCare Ruling

One: We know a ruling is a going to lead to a holy legal mess when it begins like this:

ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined; an opinion with respect to Part IV, in which BREYER and KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. GINSBURG, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to Parts I, II, III, and IV. SCALIA, KENNEDY, THOMAS, and ALITO, JJ., filed a dissenting opinion. THOMAS, J., filed a dissenting opinion.

Another instance where a ruling began this way was in the 1978 Bakke case. In it, Justice Powell could not convince a majority of his colleagues to sign off on his tortured claim that the University of California could not reject white candidates because of their race. But it could give blacks and other minorities extra bonus points because of their race. He was against racial quotas, you see, but thought racial preferences were just peachy – a distinction that his conservative and liberal justice had difficulty seeing. The upshot was multiple opinions with multiple dissents and multiple concurrences without any clear guidance as to which one was applicable. This has lead to 40 odd years of conflict and confusion in the lower courts that the Supreme Court is still trying to sort out (as I noted here.)

The ObamaCare ruling too will trigger a litany of lawsuits as lower courts try to figure out: the new limits to the

Commerce Clause; whose plurality opinion is binding on any given issue; whether a law that is unconstitutional under the new reading of the Commerce Clause grounds can nevertheless be constitutional under some other rationale not even fully asserted by either party given Chief Justice Roberts' injunction that if a reasonable – not good or solid, mind you—constitutional argument exists somewhere, anywhere, in favor of a duly enacted law, the courts are duty bound to uphold the law.

The upshot will likely be an erosion of public confidence in the Supreme Court's authority, precisely the opposite of what Roberts intended by splitting the ObamaCare monster in half.

Two: This ruling should put to rest the idiotic notion that conservative jurists are ideologically driven, partisan hacks who never seriously consider the other side's argument. ObamaCare opponents had a lock only on one justice going in: Clarence Thomas. Who else they might muster was always up in the air given that the conservative justices try to balance multiple competing concerns: originalism; stare decisis; judicial modesty; the court's legitimacy…yada, yada, yada. Kennedy, who votes often with the liberal wing of the court, was regarded as the most likely swing vote. That Roberts cast that vote on a case of such huge importance to conservatives and libertarians suggests that he is even less easy to pigeonhole ideologically.

What's more, it should also be equally clear that if there are any ideologically driven, partisan hacks on the bench who never seriously consider the opposing argument, they are the liberal justices. It was a foregone conclusion that they would vote as a bloc to uphold ObamaCare's individual mandate – and they didn't disappoint. That two of them actually voted against the constitutionality of the Medicaid mandate is being regarded as something of a shock. However, the fact that not one of them worried about the original intent of the Commerce Clause – their preferred grounds for affirming the individual mandate – says something about whether they regard their ideological agenda as subordinate to the constitution or vice versa.

And what's true of the Supreme Court is even more true of lower courts and the liberal punditry on the whole. Indeed, two lower court conservative justices voted in favor of ObamaCare but not a single liberal justice voted against it.

Too much fragmentation in a camp can be a sign of intellectual disarray. But too much unanimity can be a sign of intellectual closed mindedness. The former might be the case with conservative jurisprudence right now, but the latter is definitely the case with liberal jurisprudence.

Three: No one should ever again believe that conservative justices are opposed to judicial activism, preferring, instead to read and apply the law as written, computer-like. Justice Scalia proved this in his ruling in the Raich case when he happily signed off on an expansive understanding of Uncle Sam's Commerce Clause authority to nullify state medical marijuana laws duly passed by voters just because he happened to disagree with them. Had it not been for his misguided reasoning, ObamaCare's constitutionality—or lack thereof—under the Commerce Clause would not have even been an issue.

But Scalia at least chose to exercise one of the two options presented to him: uphold or overrule the law as written. Justice Roberts, on the other hand, as many have already pointed out, has rewritten ObamaCare as per his taste. The law itself repeatedly noted that the fine for not purchasing health care was a penalty not a tax, a designation that Roberts accepts in order to determine if the court had standing to rule under the Anti-Injunction Clause (the Clause bars legal challenges to federal taxes before they have gone into effect). But he rejected that designation and redubbed the "penalty" a "tax" in declaring it constitutional. Never mind that, as the Wall Street Journal notes this morning:

The Pelosi Democrats explicitly structured the mandate as a regulatory "penalty." Congress voted down a direct tax in 2009. Supreme Court precedents going back to the 1920s and 1930s define penalties and taxes as mutually exclusive and critically different.

Every lower court that heard the health-care cases rejected the taxing argument. Administration lawyers devoted only 21 lines of their reply brief to this argument and it barely came up at oral arguments.

 As Justice Scalia noted in his scathing dissent: "Today the court saves a statute Congress did not enact." 

How much more activist can a justice get? (OK…don't answer that!)

It is hard to believe that Roberts buys his own tortured rationale. So why did he proffer it? The chief theory is that he was determined to find some way to uphold the law to deflect liberal accusations of partisanship by the court. In short, Roberts succumbed to politics in order to show that the court is above politics. He held the court's interests above the rule of law.

Justices are given a life-long appointment rather than being forced to run for elections every few years in order to protect them from the vagaries of daily politics. If the Supreme Court is still going to stick its finger in the political wind before making its rulings, is there any point in appointing justices anymore?

Justice Roberts might have done more damage to the court than he realizes. Sometimes just doing the right thing and letting the chips fall where they may is more conducive to advancing a cause than over clever efforts to please everyone.