Return of the Umpire: Now it’s the “Roberts Court”

by Russell's Rants

Originally published June 28, 2012

bb303c7bddabef2eb642a430d97515ffJust last week in the run-up to the Supreme Court’s ruling today upholding the Affordable Care Act, Professor Erwin Chemerinsky joked that we’ve been living under the “Kennedy Court.” It’s been Associate Justice Anthony Kennedy who has voted with the majority in split decisions – 94% in the majority during the last two Supreme Court sessions. Kennedy has been the key swing vote on key issues of campaign finance law, gay rights and affirmative action, among others. And, indeed, the conventional wisdom, even my own, was that Kennedy’s single vote, along with either the four liberal or the four other conservative justices, would decide the fate of President Obama’s health care reform.
But Kennedy was not the swing vote on the Affordable Care Act. Instead, it was Chief Justice John G. Roberts, Jr.

The umpire returns

At his confirmation hearing, Roberts famously testified to the Senate Judicial Committee that it was the job of a judge to be an umpire – calling balls and strikes – not to act like a legislator crafting policy. And his opinion today, the now Chief Justice reaffirmed the Court’s longstanding deference to Congress in enacting laws.

“Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.” [Citation.] Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

And Roberts made clear that he was ruling on the Act based upon whether it was constitutional, not upon whether he deemed it wise.

In resuming his role as Umpire in Chief, Justice Roberts has rebranded the Court as his own. Had he sided with the conservatives, including Justice Kennedy, and struck down President Obama’s signature act of his first term, the focus would have been on why Kennedy chose to swing right (which is still an interesting question). And such a ruling would have politicized the Court to heights that surpassed reaction to Bush v. Gore and Citizens United.

Indeed, by voting to uphold the Act here, Roberts gave himself some breathing space in terms of the legitimacy of the Court and snuck in some rather conservative principles of New Federalism – including a retrenchment of Congress’ powers under the Commerce Clause and a new restriction on federal strings attached to block grants to the states that was part of the ruling on Medicaid expansion. But Roberts also reasserted himself as the leader of the Court, both as the key swing vote in this seminal case and the one to pen its majority decision. One has to admire his “political” instincts in that regard.

Oral argument provided hints of today’s ruling

At oral argument before the High Court in March, there was a key exchange between Justice Sotomayor and Paul Clement, representing the states challenging the Act, in which she asked:

Could we have an exemption? Could the government say everybody pays a shared health care responsibility payment to offset all the money that we’re forced to spend on health care, we the government; but anybody who has an insurance policy is exempt from that tax? Could the government do that? . . . . We get tax credits for having solar-powered homes. We get tax credits for using fuel-efficient cars. Why couldn’t we get a tax credit for having health insurance and saving the government from caring for us?

In response, Clement conceded that “[t]he government might be able to do that” and the Chief Justice later encouraged Clement to return to Justice Sotomayor’s question. Turns out that was game, set, match because Roberts could not see any functional difference between such a credit and a tax.

In his majority opinion, Justice Roberts noted that labels are not important but that “[t]he exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects.” He cited the fact that what is referred to in the Act as a “shared responsibility payment” is made to the Treasury by taxpayers when they file their tax returns, calculated based upon taxable income, found the Internal Revenue Code and collected by the IRS. And it produces revenue for the government, an estimated $4 billion per year by those who choose to go without health insurance.

Harkening back to Justice Sotomayor in oral argument, the Chief Justice analogized to a hypothetical tax on homeowners without energy efficient windows. And he noted that “Congress’s use of the Taxing Clause to encourage buying something is. . . not new.” Indeed, the Chief quoted Benjamin Franklin that nothing is certain “except death and taxes.” According to Roberts, the Act “makes going without insurance just another thing the government taxes, like buying gasoline or earning income.”

And contrary to Roberts’ Commerce Clause analysis, “the Constitution does not guarantee that individuals may avoid taxation through inactivity.” This was a cagey way for Roberts to distinguish the Commerce from the Taxing Clause authority for the Act and was apparently enough to carry the day for the constitutionality of the Affordable Care Act. Roberts did not want his Court to be the first since 1936 to overturn a major piece of social legislation. His patina of an umpire would have been lost forever.

healthcare_law_image1Chief Justice Roberts’ majority opinion today in National Federation of Independent Business v. Sebelius has now become his signature ruling – and by extension, the Supreme Court has now become the “Roberts Court.”

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