Roving thoughts and provocations

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Why Did Roberts Change His Mind?

AP Photo/Nick Ut
US Supreme Court Chief Justice John Roberts, July 13, 2006

Above all, we should celebrate. The Supreme Court, by a 5-4 vote, has left President Obama’s Affordable Health 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 for national health care provision that protects 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 system it creates is therefore 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 approach 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 who are already sick. The Act subsidizes private insurance for those too poor to afford it, and extends the national Medicaid program so that it can provide care for all of the very poor.

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

It was Chief Justice Roberts, who had never voted with the liberals in a 5-4 decision before, who provided the decisive vote for upholding the Act. He said that the Act should be construed as a tax, and therefore valid because Congress has an undoubted power to “lay and collect taxes.” In an article for the next issue of The New York Review, I will describe and criticize his arguments and those of the other justices. Here, I will concentrate on why the Chief Justice voted as he did. There is persuasive internal evidence in the various opinions the justices filed that he intended to vote with the other conservatives to strike the Act down and changed his mind only at the very last minute. Commentators on all sides have speculated furiously about why he did so. One 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’ own explanation: 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, to reach a result the right-wing in American politics favored. Consider his vote in the regrettable 2010 Citizens United case, which 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 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 reconsider its judgment in Citizens United: the State said that the amount and evident political impact of corporate electioneering in the two years since 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, only a short time after that contemptuous refusal, Roberts has 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 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 maintain public respect for the Court for being 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 been particularly inclined to do so in view of the large number of politically charged cases scheduled for hearing next year, 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 consideration 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 Congress’s 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 Court will be asked to strike down an important part of the Civil Rights Act of 1965, which requires states with a particularly bad voting rights record to seek federal permission for new changes in their election laws. Moreover, it may 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 heath 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.


This is the first of two posts on the Supreme Court’s surprising 2011-2012 term. Tomorrow: David Cole on why liberals are having trouble celebrating their Supreme Court victories.

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