Roberts’s detractors believe that he reinterpreted what Congress said in the legislation to find a legal justification for upholding it — by defining the individual mandate, the most controversial part of the act, as a tax. For that, he is taking considerable heat from conservatives. Coincidentally, he handed GOP presidential candidate Mitt Romney and the Republicans a new justification to attack Obama for raising taxes.
Roberts said in his opinion that he was not making a judgment about the wisdom of the policy; he said only that it was constitutionally permissible. He has thrown the debate over health care back into the political arena for adjudication in November and perhaps beyond. Those who looked to the court to redress political grievances over a health-care law that was passed on a party-line vote have the opportunity to win their case in the court of public opinion, which is the right place given all its history.
In his act of judicial activism, as some of his critics have described it, Roberts demonstrated restraint of a different kind — a bow to the political branches of government to exercise their powers within the broad framework of the Constitution. If it was judicial activism, it was in the service of institutional deference.
The ruling was handed down at the close of a week in which Congress finally approved a transportation bill and a measure that prevented student-loan interest rates from rising. The actions came after months of discord and against strict deadlines that would have imposed hardship on students and transportation workers had Congress not found agreement.
The passage of the two bills is an exception in an institution that is a forum more often used to advance partisan agendas or to seek political advantage in the next election. The public image of Congress is historically low. The successes of the past few days aren’t likely to do much to enhance its dismal image in the eyes of the public.
The chief justice helped remind the country that each branch of government has particular powers, responsibilities and obligations. The legislative branch is designed for partisan debate — occasionally, angry partisan debate — but, ultimately, it is there to make laws and solve problems that it alone can solve. On many big issues, Congress has ducked or deferred, with members hoping that with the next election, they will be given a mandate — and the majorities required — to do what they want with minimal compromise.
That the country is polarized is beyond question. Obama has proved to be a divisive president, despite his insistence that he is open to compromise and accommodation. Congress reflects and feeds that polarization. As a result, as an institution, it enjoys little public confidence or respect. Congress has become an arena not to solve problems, but to avoid solving them. Even Americans with sharply partisan views find that distasteful.
Congress will get another chance to show leadership after the election, when a series of fiscal issues come to a head. If, for political reasons, the leaders choose to postpone some of the hard decisions, they will have to face them in 2013.
On one of the most politically charged cases in years, the chief justice chose to exercise the leadership that goes with his position. He may have protected his institution at the same time. The members of Congress have not done that very often in recent years. That is one lesson they can take away from the court’s historic ruling.
For previous columns by Dan Balz,
go to postpolitics.com.