Conservative critics of the nation’s courts expend an awful lot of energy complaining about judicial activism. Yet, in Thursday’s ruling upholding the Obama health care law, the Supreme Court delivered a model opinion of judicial restraint and conservatives are still complaining.
In one of the most anticipated high-court rulings in decades, the Supreme Court largely upheld President Obama’s health care overhaul, including the individual mandate, the hotly debated core requirement that virtually all Americans have health insurance. It was a stunning moment given that:
- The media and political establishments had essentially concluded after oral arguments that the mandate was toast. (both CNN and Fox News initially reported that the law had been overturned)
- Conservative member and Chief Justice John Roberts cast the deciding vote, not Anthony Kennedy, as many expected (Roberts also authored the majority opinion).
- The manner in which Roberts arrived at his conclusion, which was not based on the Commerce Clause but on the Congress’ power to tax. Essentially, Roberts wrote, the individual mandate falls within Congress’ power to impose taxes.
Roberts did conclude, as did the four dissenting justices, that the Commerce Clause wasn’t broad enough to include the insurance mandate. But that didn’t turn out to be necessary for the law to survive.
On behalf of the dissent, Kennedy wrote, “In our view, the entire Act before us is invalid in its entirety.” Which means, basically, that if Roberts had sided with the conservative wing of the court, the entire law would have been thrown out.
John Roberts is getting a lot of notice and praise for his restraint in an increasingly partisan court. Some see the decision as Roberts finally coming into his own. The key Roberts quote laying out his case for considering the individual mandate penalty a tax:
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition –not owning health insurance– that triggers a tax –the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance.
Roberts also makes the case that “exactions not labeled taxes nonetheless [are] authorized by Congress’s power to tax.
The opinion is significant in a number of ways:
- With the Affordable Care Act being perhaps among the most significant pieces of social legislation since the New Deal, legal eagles already are saying this decision makes him one of the most important Chief Justices in the history of the Court.
- Republicans cannot bring up one of the tired old arguments: They can’t say that this was a decision make by activist liberal judges. Roberts is no liberal, and while it’s pretty clear he doesn’t like the law, he ruled instead on legal arguments, not personal ones, as critics often maintain is the case with the blustery Antonin Scalia.
- The ruling is also an example, maybe even a rare example, of the kind of objectivity we should want from justices.
Roberts’ narrowly crafted opinion made an important point:
We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.
Elsewhere he writes, “It is not our job to protect the people from the consequences of their political choices.”
The inference: Roberts doesn’t like the law. In fact, CNN’s top legal analyst Jeffrey Toobin, posted an interesting description of the chief justice via Twitter: “Roberts was red-eyed and unhappy as he read.”
The larger, more important point: It doesn’t matter whether you like the law, it only matters whether it’s legal. The Court is not there to evaluate a law for its effectiveness. Roberts seemed able to rise above personal feelings and rule strictly on the merits of the legal arguments. You don’t always see that, but Roberts has always believed that if the Court is to maintain legitimacy, its justices must start acting more like colleagues and less like prima donnas.
That doesn’t guarantee the rest of country will stop acting like prima donnas. The conservative talking point world is apoplectic, calling Roberts a traitor. Among other things, someone changed his Wikipedia page to list him as the “17th Chief Traitor of the United States.”
In an ironic poke at a popular conservative criticism, William Saletan at Slate Magazine noted that Republicans were attacking the ruling before they’d even read it, which compelled one internet commenter to snark in mock protest saying, that wasn’t true since everyone knows Republicans can’t read.
Whether you call it a fee, a requirement or a penalty, as the law’s language does, the Court ruled that if it looks like a tax and sounds like a tax, it’s a tax, and thus sustained the mandate “as a command for Americans to buy insurance, but as a tax if they don’t.”
Some critics argue that we were lied to because Democrats initially shied away from using the term “tax” when they were crafting the law, which makes political sense since taxes tend to be a dirty word, or at least one the Republicans can use as an effective talking point.
But the game of political semantics doesn’t matter, and it doesn’t matter if people think the administration was lying –certainly that’s not the Court’s concern. They’re not in there voting for lawmakers or candidates. They’re ruling on the law. This may disappoint the disappointed but the Court really doesn’t give a damn about your feelings; they only care about the law. Clearly they knew the tax argument was there so how could it be a lie? Maybe to the people who weren’t paying close enough attention. Consider this passage from the oral arguments:
JUSTICE SOTOMAYOR: I want to understand the choices you’re saying Congress has. Congress can tax everybody and set up a public health care system.
MR. CARVIN: Yes.
JUSTICE SOTOMAYOR: That would be okay.
MR. CARVIN: Yes. Tax power is –
JUSTICE SOTOMAYOR: Okay.
MR. CARVIN: I would accept that.
Consider this passage:
While I expect the statute to survive, I also have two other predictions. One is that however the case comes out, the chief justice will be in the majority and will write the controlling opinion. I don’t say ‘majority opinion’ because I don’t think there are five justices who will necessarily agree on a common rationale for their agreed-upon result. In addition, or as an alternative to upholding the individual mandate as an exercise of Congressional authority under the Commerce Clause, some may prefer to treat the individual mandate as a tax, squarely within Congress’s taxing power.
That was written by Linda Greenhouse of the NY Times last April, shortly after the oral arguments. If the administration was lying, how did she know about this? You can’t say it wasn’t available for all to see in the so-called “Paper of Record.” Or in the legal arguments so many said they were following.
And Roberts himself noted in his opinion that an individual making $35-thousand annually would owe just $60 per month to the IRS for failing to obtain health insurance. The average insurance policy, by contrast, would run about $400 per month.
Whether one likes he Roberts opinion or not, no one can argue that he didn’t exercise judicial restraint. He interpreted the legal arguments without the taint of her personal opinion. The fact he did it on such a high profile case, among the most significant in decades, makes his opinion even more notable, and it’s more than passing amusing that an opinion with no activism in it has generated so much anger from conservatives, the partisan bloc that loves to complain about judicial activism.
- Mitt Romney and Republicans are promising to scrap Obamacare but he has no chance of doing that. The Republicans would have to achieve a 60-vote, filibuster-proof majority in the Senate this fall. That isn’t going to happen. In fact, it remains likely that Democrats will retain control of the Senate. If that happens, they’ll control it at least through 2014, when most of the law’s basic framework will become enacted, including the individual mandate. No country that’s instituted a universal health insurance program has ever rolled it back, including the U-K under Margaret Thatcher, and Canada, which is now under conservative rule.
- For a little comic relief, here’s what Sarah Palin had to say about the ruling: “Obama lied to the American people. Again. He said it wasn’t a tax. Obama lies; freedom dies.” In response, someone tweeted, “Shhhh. The grownups are talking.” Palin, you may recall, once promoted the myth that the law included death panels.
- CNN and Fox News had company in initially reporting the decision incorrectly. So did at least five lawmakers: Reps Dennis Ross, Aaron Schock, Virginia Foxx, Steve Palazzo and Buck McKeon all got it wrong – the individual mandate was actually upheld as a tax. The five lawmakers reacted in different ways after realizing their mistake.”
- While all networks were going wall-to-wall on all-things SCOTUS, Fox News took a timeout to interview Rupert Murdoch about the looming News Corp. split.
- In all, the justices spelled out their views in six opinions totaling 187 pages. Roberts, Kennedy and Ginsburg spent 57 minutes summarizing their views in the packed courtroom.
- One person probably feeling mighty good right about now is Solicitor General Donald Verrilli whose oral argument before the court was heavily criticized. BuzzFeed has the audio from what it sarcastically calls “the Most Convincing Oral Argument, Ever.”
- Tweeting Before Thinking, Department: Democratic National Committee’s executive director Patrick Gaspard had this to say immediately following the news: “it’s constitutional. Bitches.” Roughly an hour later, however, he began walking back his meme-worthy quote, tweeting: “I let my scotus excitement get the better of me. In all seriousness, this is an important moment in improving the lives of all Americans.”
- He wasn’t the only one with foot-in-mouth disease. In a closed-door House GOP meeting yesterday, Mike Pence, an Indiana Republican who is the current front-runner in his state’s gubernatorial race, “likened the Supreme Court’s ruling to the Sept. 11 terrorist attacks.” Pence moved quick to apologize, telling a D-C outlet, “My remarks at the Republican Conference following the Supreme Court decision were thoughtless. I certainly did not intend to minimize any tragedy our nation has faced and I apologize.”
- Some congressional Democrats are treading a little more carefully. While they don’t wanna alienate their Democratic base by criticizing the law too harshly, they don’t wanna give it too much praise, either. Reason? They’re running for reelection in Red States.
- The ruling is good news for swing states: They can look forward to millions of dollars worth of outside spending to tell you how to feel about Obamacare. Already, the conservative super-group Americans for Prosperity plans to launch a $9-million ad campaign targeting the law –with a focus on Roberts’ ruling that the penalty people would need to pay if they don’t follow the mandate is indeed a tax.
- Finally, who would the health care law help the most? The uninsured, right? Guess which states have the most uninsured residents: That’s right, the red ones. And who said politicians can’t get Americans to vote against their own self-interest? (Map)
- One way the Internet react? With lots of memes. There was, of course, one we’ve seen before: “Brace yourselves. Everyone on Facebook is about to become a constitutional scholar.”
- Someone took the iconic Dewey Defeats Truman image, updated to show Obama’s “reaction” to CNN’s flub of having first reported the law was overturned.
- Or Obama and Michelle “remarking” on the events of the day.
- And of course, the cat, one of the Internet’s favorite animals, weighed in: A blog which claims it was “inspired by a typo” features cats acting out various healthcare-related scenarios. For example, someone holding up a cat, and the caption says, “Affordable Care Cat Upheld.”