The New Yorker
By Jeffrey Toobin
July 9, 2012
When Chief Justice John Roberts emerged from behind the red curtain and took his seat at the center of the Supreme Court bench last Thursday, he did not look like his usual self. The brisk confidence of the Midwestern burgher was absent, replaced by a more sombre mien. His eyes were red-rimmed and downcast, his voice nearly a mumble. The announcement of the Court’s decision in National Federation of Independent Business v. Sebelius was clearly an unhappy duty for him. It’s easy to see why. By affirming the constitutionality of the Affordable Care Act—the legislative cornerstone of Barack Obama’s Presidency—Roberts was disappointing those closest to him. Roberts was a professional Republican: a staffer in the Reagan and Bush I Administrations, a judge and a Justice thanks to Bush II. And here, alone and exposed, Roberts joined with the Court’s four liberals to dash the Republican Party’s most fervent wishes. It was a singular act of courage.
One hopes, then, that it is not too churlish to point out that this should have been an easy case. The core dispute before the Court involved the portion of the A.C.A. which requires all Americans, eventually, to have health insurance. Failure to comply with the so-called individual mandate subjects scofflaws to a modest fee, to be paid when they file their tax returns. The basic idea for the mandate had bounced around policy circles for years, usually with Republican sponsors. As governor of Massachusetts, Mitt Romney implemented an individual-mandate system; as President, Obama based his proposal, more or less, on Romney’s. For two decades—from the mandate’s début in a policy proposal released by the right-wing Heritage Foundation to shortly before Congress voted on the A.C.A.—no one suggested that there was any constitutional problem with the idea. This is because there isn’t one.
Since 1937, the Supreme Court has recognized that the Commerce Clause of Article I of the Constitution gives Congress a free hand to address national economic problems. And few national economic problems are bigger than those of the health-care system, which now accounts for nearly a fifth of the economy. Over the years, Congress has passed many laws that attempt to address health-care issues: Medicare, Medicaid, the prescription-drug benefit, to name just a few. Without exception, and without even much controversy, the courts have found these laws to be constitutional.
That the constitutionality of the A.C.A. was even called into question is testimony to how far the center of gravity in the American judiciary has shifted to the right. What’s more, five Justices, including the Chief Justice, found that Congress had exceeded its powers under the Commerce Clause when it passed the Affordable Care Act. Supreme Court opinions are usually thick with citations of prior cases, but the key section of Roberts’s opinion, which was seemingly inspired more by Ayn Rand than by John Marshall, has almost none: “Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.” But the A.C.A. does not “regulate an individual from cradle to grave”; it simply forces individuals to help pay for the medical care that they will almost certainly receive at some time in their lives. As Ruth Bader Ginsburg noted in her separate opinion, “The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli.”
In the end, of course, Roberts did uphold the A.C.A. as an exercise of the constitutional power to tax. Frankly, that argument is not a persuasive one. As the conservative Justices wrote in their joint dissenting opinion, taxes are enforced contributions to support a government; penalties are punishments for unlawful acts. The individual mandate is clearly designed to induce the purchase of insurance, and the only people who have to pay the fees are the ones who refuse to go along. That sounds a lot like a penalty. But it was good enough for Roberts, and it led to the correct result. Any port will do in a constitutional storm.
It is tempting to see, in the Chief Justice’s work in the health-care case, the possibility of some very long-range thinking. By siding with the liberals, Roberts insulates himself from charges of partisanship for the foreseeable future. This may be worth remembering next year, when the Court, led by the Chief Justice, is likely to strike down both the use of affirmative action in college admissions and the heart of the Voting Rights Act of 1965. And if, in the same year, the Justices uphold the noxious Defense of Marriage Act, many will deem Roberts’s motives beyond reproach.
It is also worth remembering that Roberts’s narrow conception of the Commerce Clause is now the law of the land. This new rule may limit the ability of Congress to expand the size of the government, and, indeed, may invite challenges to some government programs that are currently on the books, such as federal consumer safety or even seat-belt laws. In Ginsburg’s apt phrase, Roberts’s reading of the Commerce Clause is “stunningly retrogressive”—that is, a throwback to the pre-1937 state of the law. That may be Roberts’s goal. His doctrinal investments may take a while to pay off, but he has the luxury of guaranteed professional longevity. Roberts could still be Chief Justice when Obama is teaching the jump shot to Malia’s and Sasha’s children. By then, if Roberts has succeeded in limiting the scope of federal power, the health-care decision may look very different from how it looks today.
But that is all some way off. And it is always possible to quibble about one facet or another of even the best judicial opinions. For today, it is enough to say that the Chief Justice and the Court did the right thing in one of the most important cases that they will ever decide. That was by no means inevitable or even foreseeable. It is, rather, something to savor. ♦