Back in Washington, the legal and political worlds are trying to digest the stunning news that one of the court’s most consistent conservatives had pulled Obama’s signature domestic achievement from the brink.
Court specialists analyzed Thursday’s 5-to-4 opinion for clues, wondering whether Roberts might have switched his vote from invalidating the law to upholding it largely unscathed.
Conservatives found new ways to express their anger: Radio host Glenn Beck was offering a $30 T-shirt with Roberts’s face and the word “COWARD” boldly printed in yellow.
And some liberals were making a 24-hour pivot from praising Roberts’s statesmanship to wondering whether the victory for Obama and congressional Democrats was delivered in a Trojan horse.
Roberts gave no further guidance, declining to elaborate on the decision at the conference of the D.C. Circuit.
When Chief U.S. District Judge Royce C. Lamberth asked Roberts whether it ever bothered him that he “can’t respond to criticism,” the chief justice drew laughter when he simply said, “no” and turned to the next question.
In the opinion that stirred this week’s controversy, Roberts wrote that it was the duty of the court to avoid rejecting an act of Congress if there is a plausible reason for saving it. “It is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so,” Roberts wrote.
So he rejected the government’s argument that requiring most Americans to purchase health insurance or pay a penalty was justified under the Constitution’s commerce clause, which gives Congress the power to regulate interstate commerce.
But, joined by the court’s four liberals, he said the penalty operated as a tax, and thus was proper under the taxing clause.
Some wondered whether Roberts originally had joined the court’s four conservatives, pointing to oddities in the opinion. The dissent offered by the conservative justices with whom Roberts usually sides in ideological disputes — Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. — read more like an opinion for the court that had been abandoned, said David E. Bernstein, a law professor at George Mason University.
The dissent did not engage in a debate with the controlling opinion offered by Roberts, as is usual in Supreme Court judgments. It contained a long section on whether the law can be severed from the individual mandate, unnecessary if a majority had already found the mandate constitutional.
It went to great lengths to establish the reasons the four thought the commerce clause did not offer the powers the Obama administration claimed. It was territory that Roberts already had largely covered in his opinion.