John Roberts: Most Valuable ‘Umpire’

John Roberts promised in 2005 to take the Supreme Court’s helm as a pragmatist. He was going to be an umpire, using the Constitution to call the balls and strikes of the American legal system. He was not going to throw and hit baseballs around the diamond, win a World Series ring, or be named Most Valuable Player. But the man who George W. Bush appointed to succeed former Chief Justice William Rehnquist got his nation’s spotlight on Thursday.

The 57-year-old Roberts has long been considered the Court’s conservative ideologue. He once clerked for Rehnquist, worked in the White House counsel’s office under President Reagan, served as George H.W. Bush’s deputy solicitor general, and later became a federal appeals court judge. He opposes abortion and affirmative action, and he deregulated campaign finance reform, ruling in favor of Citizens United two years ago.

But for the court who needed five votes to uphold the constitutionality of President Barack Obama’s signature Affordable Care Act, he was number five. Roberts’s court reviewed four clauses prior to Thursday’s ruling – the constitutionality of the individual mandate to purchase health insurance, the impact of expanding Medicaid on each of the fifty states, whether any or all parts of the law must be rejected if the mandate is turned down, and whether all these questions can be reviewed before the mandate takes form in 2014. His ruling that the law’s individual mandate was permissible as a tax pleasantly surprised liberals who had predicted him to declare the very opposite, while also pleasing those in his conservative base seeking to do away with the Commerce Clause.

“The Affordable Care Act is constitutional in part and unconstitutional in part,” Roberts wrote in a 59-page opinion released Thursday morning. “It is reasonable to con­strue what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Con­gress’s power to tax.”

Advocates of the act call the mandate crucial in expanding health coverage nationwide to roughly 31 million Americans. And starting in 2015, those who refuse to purchase health insurance will be taxed extra.

Here are some key elements to Thursday’s Supreme Court majority ruling, collectively issued by Roberts, along with Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor:

Although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs…

But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice…

The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

The Supreme Court’s majority ruling has not gone without its opposition. According to Talking Points Memo, a photo caption on Roberts’s Wikipedia page was briefly changed to “17th Chief Traitor of the United States” just after the decision was announced. Republican Congressman Jack Kingston of Georgia tweeted Thursday that he no longer considers the Chief Justice a friend:

The four justices who called the act unconstitutional, Antonin Scalia, Clarence Thomas and Samuel Alito Jr., and Anthony Kennedy, called the ruling a “vast judicial overreaching.” The Republican-appointed justices added that it “creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect.”

But nearly a majority of Americans have not been expecting much from their nation’s highest court lately. Nearly 52 percent of Americans view the Supreme Court favorably, according to a recent Pew survey. That statistic was at 80 percent as recently as 1994, but the court’s Bush v. Gore ruling in 2000 was seen as the centerpiece of its partisan leanings.

Roberts and his fellow justices often insist that they ignore the see-saw dynamics of national politics, stating that they are instead focused on upholding the country’s oldest laws. But that has not likely stopped the Chief Justice from weighing the partisan implications of each possible outcome against one another. Roberts knew how liberals and conservatives would view him following the momentous decision, and nobody aside from the man himself will ever know if such considerations affected his ruling.

Timothy S. Jost, a Washington and Lee University law professor, told Talking Points Memo that politics could have played at least a minor role in the Chief Justice’s ruling. “A lot of people really believe that the Supreme Court is a super-legislature that decides things on political rather than legal grounds. This would be an opportunity for the chief justice to say, ‘No, we’re going to defer to Congress on major issues and only strike down laws that are clearly unconstitutional.’”

The long-term impacts of the Affordable Care Act are years in the making. And in between Thursday’s ruling and the time the act takes full effect, Roberts will make more decisions that will upset both of Washington’s aisles. But the Chief Justice’s one-time Harvard law professor, Laurence H. Tribe, told The New York Times that Roberts will keep his eyes on the ball:

“This could be a huge day in the evolution of Chief Justice Roberts as a great chief justice,” Tribe said. “I have some sense of gratification.”


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