Thursday’s ruling upholding the constitutionality of the Affordable Care Act offers welcome, relieving evidence that it is, thanks to Chief Justice John G. Roberts Jr. Lord knows, there have been times when Roberts has failed to practice the umpire-like restraint he so fervently preached at his Senate confirmation hearings.
The court under Roberts reached out in the Citizens United case, for example, to decide a question that had not been raised by any of the parties before it, and in doing so overturned one of its own precedents and a congressional enactment.
I like the result in the health-care case, if not all of the reasoning. But I hope to be saying something more intellectually honest here than that the chief justice ruled in a way I agree with, so now I’ve decided he’s a good guy after all.
My point is also different from the maxim of the Supreme Court following the election returns or being swayed, however subconsciously, by public opinion. After all, if the court’s decision-making on the health-care law was influenced by public polling, the mandate would have been out the window: The provision did not have majority support even among Democrats.
I mean something more fundamental about the court and the justices’ conception of its role in the constitutional architecture. The court appropriately operates as a check on the power of Congress and the president. It acts less appropriately as a checkmate, frustrating the ability of the other branches to address national problems.
This was the hard-learned lesson of the court during the New Deal, when its rulings frustrated, in every sense of that word, Franklin Roosevelt’s efforts to help the country climb out of the Great Depression. Ultimately, the court’s self-correcting, and perhaps self-protecting, mechanisms kicked in.
Likewise, there are moments — the civil rights struggle and Brown v. Board of Education
come to mind — when the court must be in the forefront of social change. But there are also occasions when it appropriately recoils from disrupting settled expectations.
Thus I found myself sitting in the Supreme Court chamber 20 years ago this week when the court, defying predictions that it was prepared to eliminate the constitutional right to abortion, stepped back from the brink of reversing Roe v. Wade, citing the risk of “profound and unnecessary damage to the court’s legitimacy.”
That was a similarly gyroscopic moment, similarly unexpected.
In Thursday’s ruling, Roberts was less explicit, yet a sense of the profound stakes for the court and the country suffuses the majority opinion. He referred to the court’s “general reticence to invalidate the acts of the nation’s elected leaders,” adding that “it is not our job to protect the people from the consequences of their political choices.”
Turning to the unexpected ground of finding the individual mandate constitutional under Congress’s taxing powers, Roberts made clear the degree to which he was putting a judicial thumb on the scale of constitutionality. “Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” he wrote, quoting an 1895 case. It was reminiscent of the contortions that he led the court through three years ago in avoiding ruling on the constitutionality of the Voting Rights Act.
There are two magnificent ironies embedded in this outcome. The first is that the president, having strenuously denied that he was raising taxes with the “shared responsibility payment,” was saved by the court’s having found it to be, yes, a tax.
The second, even richer, is that President Obama’s signature domestic achievement was saved by none other than the chief justice whose confirmation he opposed. Then-Sen. Obama said he worried about how Roberts would vote in the sliver of “truly difficult” cases that “can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
Roberts’s alliance with liberals in the health-care ruling, I suspect, illuminated something of his “deepest values” and “core concerns.” Too bad protocol would prevent the president from picking up the phone to say “thanks.” Maybe even “I was wrong.”