Chief Justice John G. Roberts Jr. delivered more than a historic ruling with his opinion upholding the constitutionality of the Affordable Care Act. Deliberately or not, he sent a message to politicians about the importance of protecting the vitality and reputation of public institutions.
That’s a message badly needed in Washington and nowhere more so than in the Capitol building that sits across the broad lawn from the Supreme Court. Congress is an institution designed to represent the people. It has become a body where too often its members act as if they represent only Republicans or only Democrats. No wonder so many Americans hold it in such low regard.
It is useful to remember that, in the run-up to the health-care ruling, one strong subtext of discussion and analysis was what a decision striking down President Obama’s health-care law would do to the court itself. Would the court, under those circumstances, be vulnerable to the charge that it had become as politicized as the other branches of government?
Fearing defeat, Democrats were preparing to make the court a target in the fall election. They were connecting the dots, from the Bush v. Gore ruling that handed the presidency to George W. Bush, to the Citizens United decision that helped unleash a torrent of big-money contributions in this year’s election cycle (a huge share of the money going to Republican super PACs), and, finally, to health care and a decision that would have been seen as toppling the president’s signature first-term accomplishment.
No Supreme Court is immune from the political currents swirling at any given time. But the assumption of most Americans is that the court, of the three branches of government, should be insulated from partisan politics and careful to protect itself from being seen as aiding or abetting those partisan wars. Its decisions may offend one side or the other, but its legitimacy should remain inviolate.
Had a majority of the justices struck down Obamacare, the court — fairly or unfairly — would have become a bigger issue in the presidential campaign than usual and in ways that could have been damaging to its authority.
How much the court’s place and reputation entered into Roberts’s thinking may never be known. Someday, the full story of how he found his way to writing a majority opinion on the health-care case with the four liberal justices may become known. Legal and political scholars would love to know how it happened and have been speculating in the absence of hard information.
The opinion Roberts wrote was, in the estimation of some legal experts, either tortured or fiendishly clever in maneuvering toward an outcome that upheld the constitutionality of the Affordable Care Act while attempting to adhere to conservative principles aimed at restraining the power of the federal government.
One can only imagine how Obama, the former constitutional law professor at the University of Chicago, analyzed the health-care opinion on Thursday and how he evaluated the motivations of the chief justice who, surprising to some, handed him a major legal and political victory in the middle of his tight reelection campaign.
That was all the more intriguing because the president and the chief justice have had a particularly testy relationship. It began with Obama’s speech outlining his opposition to Roberts’s nomination in 2005. He said Roberts had the intellect and temperament to sit on the court but questioned whether he had the values and heart not to side with the strong over the weak.
Their relationship may have reached its nadir when Obama publicly rebuked Roberts and the court for the Citizens United decision as the justices sat uncomfortably before him in the House chamber during his 2010 State of the Union address.
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.