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A Bigger Victory Than We Knew

Brooks Kraft/Corbis
President Obama with Supreme Court Justices Anthony Kennedy, Samuel Alito, and John Roberts before addressing a joint session of Congress, Washington, D.C., February 2009


Above all, we should celebrate. The Supreme Court, by a 5–4 vote, has left President Obama’s Affordable Care Act almost entirely intact. So the United States has finally satisfied a fundamental requirement of political decency that every other mature democracy has met long ago, and that a string of Democratic presidents, from FDR to Bill Clinton, tried and failed to secure for us. We finally have a scheme of national health care provision designed to protect every citizen who wants to be protected.

The Affordable Care Act does not change America’s tradition of using private health insurance as the basic vehicle for financing medical care. The scheme it creates is less efficient and rational than a single-payer system like Great Britain’s in which the national government employs doctors and hospitals and makes them available to everyone. But a single-payer scheme is politically impossible now, and the act erases the major injustices that disgraced American medicine in the past. Private insurers are now regulated so that, for example, they cannot deny insurance or charge higher premiums for people already sick. The act subsidizes private insurance for those too poor to afford it, and extends the national Medicaid program that has provided care for some of the very poor to cover all of them.

But it is nevertheless depressing that the Court’s decision to uphold the act was actually a great surprise. Just before the decision was announced, the betting public believed, by more than three to one, that the Court would declare the act unconstitutional.1 They could not have formed that expectation by reflecting on constitutional law; almost all academic constitutional lawyers were agreed that the act is plainly constitutional. The public was expecting the act’s defeat largely because it had grown used to the five conservative justices ignoring argument and overruling precedent to remake the Constitution to fit their far-right template.

The surprise lay not just in the fact that one of the conservatives voted for the legally correct result, but which of them did that. Everyone assumed that if, unexpectedly, the Court sustained the act it would be because Justice Anthony Kennedy, the least doctrinaire of the conservative justices, had decided to vote with the four more liberal justices, Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. After all, since 2005, Kennedy had joined the liberals in twenty-five cases to create 5–4 decisions they favored, rather than joining his fellow conservatives to provide five votes for their side. Two of the other conservative justices—Justices Antonin Scalia and Clarence Thomas—had done that only twice, and the two others—Chief Justice John Roberts and Justice Samuel Alito—had never done so. So most commentators thought, from the moment the Court agreed to rule on the act, that the decision would turn, one way or the other, on Kennedy’s vote, and a great many of the hundreds of briefs submitted on both sides offered arguments designed mainly to appeal to him.2

But Kennedy voted with the conservatives this time. Moreover, he signed a joint dissent, along with Scalia, Thomas, and Alito, that was, even by the usual standards of those latter three justices, intemperate and in parts outrageous. In the oral argument of the case, last March, Kennedy had suggested that he thought the question of the mandate’s constitutionality a close one. There is no hint of that caution in the belligerent joint dissent.

It was Chief Justice Roberts—who, as I said, had never voted with the liberals in a 5–4 decision before—who provided the decisive vote for upholding the act. There is persuasive internal evidence in the various opinions, and particularly in the joint dissent, that he intended to vote with the other conservatives to strike the act down and changed his mind only at the very last minute.3 Commentators on all sides have speculated furiously about why he did so. A popular opinion among conservative talk-show hosts suggests that Roberts has been a closet liberal all along; another that he has suffered a mental decline.

Almost no one seems willing to accept Roberts’s own explanation: he said, in his opinion, that unelected judges should be extremely reluctant to overrule an elected legislature’s decision. His own judicial history thoroughly contradicts that explanation. In case after case he has voted, over the dissenting votes of the liberal justices, to overrule state or congressional legislation, as well as past settled Supreme Court precedents, in each case to reach a result the right wing in American politics favored. His vote in the regrettable 2010 Citizens United case overruled a variety of statutes to declare that corporations have the free-speech rights of people, and therefore have the right to buy unlimited television time to defeat legislators who do not behave as they wish.

The conservative majority’s opinion in that case insisted that such corporate expenditures would not create even the appearance of corruption. This year the state of Montana pleaded with the Court to rethink that judgment: the state said that the amount and evident political impact of corporate electioneering in the last two years had conclusively demonstrated a risk of corruption. Roberts and the other conservatives did not bother even to explain why they would not listen to evidence for that claim; they just declared, in an unsigned opinion, over the protests of the liberal justices, that they would not.

It is therefore hard to credit that, in so short a time after that contemptuous refusal, Roberts had been converted to a policy of extreme judicial modesty. Most commentators seem to have settled on a different explanation. Recent polls have shown that the American public has become increasingly convinced, by the drum roll of 5–4 decisions mainly reflecting a consistent ideological split, that the Supreme Court is not really a court of law but just another political institution to be accorded no more respect than other such institutions. Roberts, as chief justice, must feel threatened by this phenomenon; the chief justice is meant to be a judicial statesman as well as a judge, and it is part of his responsibility to protect the public’s respect for the Court as above politics. Perhaps he thought it wise, all things considered, to take the occasion of an extraordinarily publicized case to strike a posture of judicial reticence by deciding contrary to his own evident political convictions.

He might have thought this particularly wise in view of the large number of politically charged cases scheduled for hearing in the Court’s next term, beginning in October, a month before the presidential election. The Court will have the opportunity to overrule its 2003 decision allowing state universities to take an admission candidate’s race into account, as one factor among others, in seeking a diverse student body. The conservative justices might wish to abolish affirmative action altogether, or to impose more stringent restrictions on it. They will also have the opportunity to reverse lower courts by upholding the Defense of Marriage Act, which forbids federal agencies to treat gay marriages as real, for example by allowing a gay couple to file a joint income tax return.

The same justices will also be asked to strike down an important part of the Voting Rights Act of 1965, which requires states with particularly bad voting rights records to seek federal permission for new changes in their election laws. No doubt, moreover, they will soon find a chance further to constrict or even to abolish abortion rights. Roberts may want to blunt the anticipated accusations of political partisanship that any right-wing decisions in these cases will likely attract by supporting Obama’s health care program now. If so, he will have been immeasurably helped by his new enemies in the right-wing media who are painting him as a secret liberal, or as a turncoat villain with a deteriorating mind.


Our eighteenth-century constitution gives Congress only a limited number of legislative powers set out in an enumerated list; no congressional statute is valid unless it can be defended as the exercise of one of those listed powers. Fortunately the framers drafted their list of powers in expansive language that made congressional power sensitive to changing economic and other circumstances. Otherwise the United States could not have developed into a great nation but would have remained an impotent federation of weak and vulnerable states. Throughout our history, however, the most conservative “states rights” justices have tried to interpret these powers narrowly, to give less power to the national government and hence more to the states. On the whole they have failed: as the need for strong national legislation became more and more evident and urgent, more generous interpretations prevailed.

The Affordable Care Act requires everyone, with very limited exceptions, to purchase private health insurance or, if they do not, to pay what it calls a “penalty” levied as part of their income tax. The Obama administration defended that “mandate” by pointing to two clauses in the Constitution’s list: Congress is given the power both to regulate “interstate commerce” and to “lay and collect taxes.” It relied most heavily, in its briefs and in oral argument, on the first of these powers. It argued what seems obvious: that financing health care is a national problem that cannot sensibly be managed in different ways state by state. Few experts challenged that assumption or the further assumption that no national legislation that relied on private insurance could succeed unless everyone, including those least likely to need medical care soon, contributed to the insurance pool. As a backstop, the administration said that if this argument failed, the mandate could be construed as a tax and therefore authorized by the power-to-tax clause.

Roberts rejected the administration’s first claim. He said that the commerce clause does not permit Congress to require people to buy commercial insurance. But he accepted the administration’s second, backstop, claim and so held the act constitutional. That combination of rulings is surprising. By long tradition, as Ginsburg pointed out in her separate opinion, a Supreme Court justice should not offer to decide constitutional issues that it is unnecessary for him to decide. Since Roberts declared the act valid because it is a tax, he had no reason gratuitously to declare that it was not a valid exercise of the commerce power. He should have explained that though the issue of the commerce clause had dominated the long argument about the act, and was thoroughly discussed in the other justices’ opinions, it was not necessary or proper for him to express an opinion about it. His explanation of why he had to declare an opinion was feeble: he said he would not have construed the act as a tax if he had thought it valid under the commerce power. But how can whether a statute is a valid exercise of one congressional power depend upon whether or not it is a valid exercise of another power? Roberts apparently thinks that the case that the act is a valid tax grows stronger as the argument that it regulates interstate commerce grows weaker. That is alchemy, not jurisprudence.

We might explain away the unnecessary pages of his opinion devoted to interstate commerce as simply the residue of the original opinion he wrote before he decided to change his vote. But law clerks with word-processing programs can make dramatic excisions very quickly, and in any case excision would have been easier than inserting his unconvincing explanation why he had to consider the interstate commerce argument even though it was irrelevant to his argument based on the power to tax. Roberts must have had two incompatible aims. He wanted, perhaps for the public relations reasons I mentioned, to uphold the act. But he also wanted to make plain that five of the nine justices are agreed that Congress does not have power to compel economic activity no matter how essential that activity might be to national prosperity or justice. Liberty, as he might put it, always trumps necessity at the national level.

Rod Lamkey Jr./MCT/Getty Images
President Obama and Chief Justice Roberts before the 2011 State of the Union address
  1. 1

    See Brett LoGiurato, “The Odds Overwhelmingly Say That Obamacare Is Finished,” BusinessInsider.com, June 27, 2012. 

  2. 2

    So did my own argument in these pages, which quoted extensively from Kennedy’s past opinions to show that he was intellectually committed to upholding the mandate. See “ Why the Mandate Is Constitutional,” The New York Review, May 10, 2012. 

  3. 3

    See Paul Campos, “Did John Roberts Switch his Vote?,” Salon, June 28, 2012. 

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