This is a critically important piece for many reasons. Read every last word.
#1: The charge that the Roberts Court is a right-of-center court has been proven wrong in dramatic fashion.
It’s not just the ObamaCare decision that can be characterized as liberal. In this term alone, the Court invalidated most of the Arizona immigration law, declared mandatory life-without-parole sentences for juveniles unconstitutional, invalidated FCC fines for fleeting expletives and brief nudity, and broadened protections for criminal defendants in cases involving both search and seizure and ineffective assistance of counsel.
#2: Five is not enough.
It’s no fluke that one or more of the five center-right Justices deeply disappointed conservatives three times in just the last few days. It’s clear that five center-right Justices on the Court will never be enough to substantially advance the law in a conservative direction. Unlike the Democratic appointees on the Court, who can be counted on to vote the progressive way when the stakes are high, Republican appointees – no matter how carefully selected – cannot be counted on to consistently uphold conservative principles.
#3: Though the immediate impact of the decision was a stunning defeat for conservatives, the larger cause of constitutional federalism was advanced.
As legal precedent, the ObamaCare decision strengthens the Constitution’s protection of state sovereignty and its limits on Congress’s power under the Commerce, Spending, and Necessary & Proper clauses. Quin Hillyer concludes that:
“[S]even of nine justices … finding that the Medicaid provision amounts to an unconstitutional coercion of the states … combined with the majority in favor of limiting the reach of the Commerce Clause, effectively means that the left lost far more than it won in terms of lasting legal precedent.”
Justice Ginsburg charged that “The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy.” Let’s hope so. In any case, now that it “will be hard … to criticize the John Roberts Supreme Court … as partisan” – in the words of liberal Supreme Court litigator and observer Tom Goldstein – it will also be hard to criticize the newly limited reading of the Commerce Clause as out of the mainstream.
#4: Obama and company’s attempt to cow the Supreme Court succeeded.
Harvard Law School Professor Noah Feldman writes that:
“Roberts knew the consequences of striking down the individual mandate: He would have been attacked by the president and the news media as the chief of the most activist conservative court since the 1930s.”
One way or another, the pressure apparently got to Roberts. Professor Lawrence Solum of Georgetown Law expresses the conclusion of many that language in the four-Justice dissent “is highly suggestive of a majority opinion. … This suggests that Justice Roberts switched his vote.”
This problem is nothing new. Moderately conservative appointees to the Court often drift to the left over time. I chalk it up to them caring too much about their reviews in the Washington Post.
#5: The bullet ObamaCare dodged was more deadly than imagined.
The conventional wisdom was that if the individual mandate were declared unconstitutional, only the mandate and two related provisions would be struck down, saving the rest of the statute. Instead, each of the four Justices who found the mandate unconstitutional voted to strike down the entire statute. But for Roberts’s surprise vote, that would have been the holding of the Court, exceeding the hopes of ObamaCare’s opponents.
#6: Roberts’s opinion was judicial activism at its worst.
Those who say the Chief Justice saved the Court from being branded a bunch of right wing activists are at least half wrong. Roberts’ logical contortions – going so far as to conclude that the individual mandate was simultaneously a tax and not a tax – invite charges of activism.
Even famed liberal law professor Alan Dershowitz concedes that, in order to achieve “a political compromise,” “Justice Roberts went out of his way to characterize the penalty for not buying insurance as a tax increase.” Such results-oriented judging, no matter its motive, is the hallmark of judicial activism.
I almost wish President Bush had appointed Barack Obama to the Supreme Court instead of Justice Roberts. That would have given us a majority of five Justices willing to emphatically say that the mandate is not a tax
#7: Chief Justice Roberts will likely be best remembered for disappointing conservatives in the most important case of his judicial career.
Whether fair or unfair, the sentiments of many conservatives are summed up by the editors of National Review: “If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.” Michael Walsh compares the Chief Justice’s surprise vote to Justice Owen Roberts’ famous switch, under pressure from President Franklin Roosevelt, that ushered in the era of virtually limitless federal power that continues to this day. There can be no more damning comparison.
On the flipside, Roberts may enjoy the accolades he is getting from more progressive circles. But rest assured– those will last only until the next big Supreme Court decision that offends liberal sensitivities.
#8: The White House should not be celebrating.
The 2012 election will now be a referendum on ObamaCare both at the federal level, where repeal of ObamaCare will be determined, and at the state level, where the future of the now-optional Medicaid extension will be determined. That’s not a good thing for President Obama, as indicated by his reticence about mentioning ObamaCare on the campaign trail. And that was before the individual mandate became a tax.
Michael Shear of the New York Times sums up the President’s problem:
“[T]he ruling also has the potential to re-energize the Tea Party movement .. and provide new political power to Mitt Romney’s pledge to repeal the law … Republicans eager to seize control of the Senate now have a renewed rallying cry in races across the country.”
#9: Don’t let the oral argument or talking heads fool you.
Early on, I and other attorneys were convinced that 1) Chief Justice Roberts, because of his minimalist tendencies, was as much a swing vote in the ObamaCare case as Justice Kennedy, 2) it would be very tempting for moderates on the Court to make the constitutional problem go away by calling the individual mandate a tax, and 3) the legal challenge to the Medicaid expansion was not being taken seriously enough because of the focus on the mandate. By the time I finished listening to the oral arguments in the Supreme Court and the talking heads on television, I had abandoned all three convictions. I should have trusted my instincts.
#10: The meaning of the ObamaCare decision is yet to be determined.
The malleability of Supreme Court decisions is demonstrated by another landmark decision 34 years ago. Allan Bakke sued the University of California over its use of minority preferences in admissions and won 5-4. A single Justice, Lewis Powell, opined that a school’s interest in achieving intellectual diversity could justify using race as one of many diversity factors. Supporters of affirmative action successfully spun the decision to mean that a majority of the Court supported the diversity rationale and that the rationale could justify huge racial preferences aimed at only skin-deep diversity.
Will the ObamaCare decision come to stand for the renewal of federalism principles or for upholding the biggest federal overreach in history? That will be determined by the litigation and communications skills of federalism’s supporters and critics.
Curt Levey is a constitutional law attorney and President of the Committee for Justice in Washington, DC.