Steven Jaffe | Carving a legacy

Guest Column | The decision on health care will shape the image of the Roberts court

· July 4, 2012, 1:45 pm

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There’s no shortage of speculation that when the nine justices gathered the Friday following oral arguments for the Patient Protection and Affordable Care Act, Chief Justice John Roberts believed the act should be overturned. Analysts point to the dissent’s triumphant tone and its reference to Justice Ruth Bader Ginsburg’s concurrence as a dissent, among other things.

There is warranted speculation, too, that he began crafting a would-be majority decision to overturn President Barack Obama’s signature piece of legislation.

It is unclear whether Roberts originally authored the section of what became the dissent — which explained why the act was not valid under the Commerce Clause — or whether he had always planned on joining the liberal wing of the court to uphold the act as a tax. But in either case, when Roberts arrived at the tax question, he chose to uphold “ObamaCare” — a decision that may ultimately define the Roberts court.

The majority decision, despite a holding that provides the Obama administration with an essential victory, is markedly conservative. Roberts went to great lengths to explain why the act could not be upheld under the Commerce Clause, which served as a redundant dissertation. If he was upholding the act as a tax, he did not need to argue that the act would not have been upheld by another one of Congress’ enumerated powers. What it did do, however, was sharply limit federal power.

The primary role of the Supreme Court is to outline enduring doctrines. While it is improbable that the Supreme Court will rule on a congruous issue anytime soon (how often will Congress pass a complex law, which exacts a penalty on anyone who does not buy a particular good?), it is inevitable that the court will rule on the limits of the Commerce Clause again — it’s one area of constitutional law that has perpetually come up since the inception of the Constitution.

Roberts could have had his cake and eaten it too by outlining a definitive limit to the Commerce Clause and overturning the act. From a conservative point of view, it would be a win-win.

Roberts had a third consideration, though: the image of the court.

There is no official decree that the Chief Justice is the sentinel of the court’s reputation, but it is a matter every Chief Justice has grappled with. If Roberts had struck down Obama’s preeminent piece of legislation, the court, regardless of how future cases were decided, would have been pejoratively tinged for an indefinite, but lasting period. The court — particularly in the Roberts era — would have been labeled distinctively as partisan.

The most divisive piece of legislation in recent memory would have been decided by the court, which would have exacerbated divide over Citizens United. Bush v. Gore, while decided before Roberts assumed his role, would also be lumped into an amalgam of cases displaying the fall of the court as an impartial arbiter of the law. Scalia’s near-demagogic essays would become the paradigm of the court. The court already has plenty of force. When it repeatedly usurps the last word on a plethora of divisive issues, however, it has overplayed its role in the political process.

Roberts was keenly aware of this issue. He was also keenly aware that while the most natural reading of the act would not have equated penalty with tax, the act in its effect imposes a tax. If there were not such an aversion to the word “tax,” the penalty would have been labeled as such when the bill was passed (as it is, the bill requires those without insurance to pay money to the IRS). And had the word “tax” been used, the decision would not have been 5-4 or even 6-3. The court would have overwhelmingly affirmed that Congress could impose such a tax. It is a rare instance that the court overturns on technicalities legislation that Congress has the power to enact.

And so Roberts upheld the act as a tax, because it was, at its core, a tax. Because, at the end of the day, everyone loses when the court is a third political branch in disguise.

Roberts’ legacy is yet to be proverbially carved in stone. But when it is, I imagine it will look more or less like this: Roberts was decidedly conservative, but was also prudent enough that when the country looked to his court to resolve the major political disputes of the era, he punted the ball back to the other two branches of government, gently admonishing them that politics was their problem.

Steven Jaffe is a rising College sophomore from Washington, D.C., and the editor of The Red and the Blue blog. His email address is jaffes@sas.upenn.edu.

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