Judicial Judo: The Chief Justice and Obamacare

john robertsNobody expected it. Most observers thought that the conservative majority of the Supreme Court would at least throw out the mandate for everyone to have health insurance. And if even that provision survived, it would have to be Justice Kennedy providing the deciding fifth vote, as he has so many times since the retirement of John Paul Stevens.

Instead, what we got was Chief Justice Roberts going with the liberal bloc for the first time in a 5-4 vote, while Kennedy wrote the dissent for the four conservatives. Moreover, Roberts constructed his majority opinion on unexpected grounds. While rejecting the Obama administration’s primary argument that the individual mandate was a legitimate exercise of the constitutional power to regulate interstate commerce, he refused to go along with the conservative in concluding that the whole law should be thrown out.

Instead, he took up the backup argument that the mandate could also be construed as a tax which lies within the acknowledged authority of Congress to impose taxes. On this basis he affirmed that the whole law is constitutional, while explicitly refraining from any judgment about its merits as public policy (a question that he referred to the elected representatives of the people, that is, Congress).

So, what gives? I believe that what we’ve seen is a kind of “judicial judo,” where the force of the adversary is used to defeat that adversary. Whether it will work remains to be seen.

Had Roberts done the predictable and sided with the conservatives, the law would have gone down. That is probably the outcome he would have preferred. But it would have further confirmed that the Court is divided into polarized, increasingly partisan liberal and conservative blocs. Ever since Bush v. Gore in 2000, many on the left have seen the Court’s majority as essentially another arm of the Republican Right. By switching sides, Roberts undermines that narrative, and maintains the precarious legitimacy of the Court as a politically independent arbiter. As Chief Justice, it is his unique responsibility to protect that institutional legitimacy, at a time when excessive partisanship has gravely undermined that of Congress.

[poll id=”53″]Moreover, Roberts’ opinion serves conservative ends in the long run precisely by blocking the conservatives in the immediate case. For he affirms Obamacare’s constitutionality on tax grounds that do not represent an expansion of federal prerogatives, while rejecting the extension of the Commerce clause to justify the individual mandate. He thus adopts a position of “judicial restraint” in refusing to countenance a novel use of the Commerce clause, by allowing a law passed by Congress to take effect, and by explicitly refraining from any judgment of its merits as policy. But he approves the law on the narrowest possible grounds, making more difficult any future expansion of federal authority.

Constitutional law aficionados will recognize a parallel with John Marshall’s strategy in Marbury v. Madison (1803), when the very principle that the courts could declare acts of Congress unconstitutional was established by means of a ruling in which the Court refused authority that had been granted to it by Congress in violation of the Constitution.

john peelerFinally, in handing a defeat to the Republicans, Roberts thereby also handed them a bludgeon with which to attack Obama as, in fact, a tax-and-spend liberal, since the law’s central mechanism is, in fact, to be construed as a tax.

It will be for Obama, in what remains of the campaign, to do a better job of explaining to voters just what is in the law, and why they should support it. And he must, of course do all he can to force the Republicans to define what they would do instead. Most people don’t like the law, but they also don’t like the status quo ante, and probably will like the Republican alternative even less, once they find out what it is.

John Peeler


  1. Hwood007 says

    I spent some time doing research on the MA medical insurance bill.  By looking in several places, you can find some that say it it all good, some that say it is all bad, and some that say it is ify, with bad and good points.  It did begin with a cash hord of federal money, which we do not have with the “unafordable health care bill” and money is the main problem it has.  It even takes money out of MediCare.  Who among you thinks MediCare is currently over-funded???? If you find such a person, ask for supporting facts and not just opinions. MediCare has money going to people who provided no services.  We need to stop that.

    The government currently manages several health care systems. These health care  programs have names such as MediCare, Veterans, MediCade, Chips,TriCare, and the big one, the one where they (gov) is in total control.  The native American health care system.  You need to search for info on this government program.  When I was in the military, I found many native Americans had joined the military for the health care system.  If I asked why when they had a system all for them, the answer was, is was a farse of a program, not enough money to last a six month period and never for a year. People learned to get sick during the first 6 months of the federal year.

    So my research tells me that government MANAGED health care does not work.  Governmant  paid health care (medicare,VA &, medicade) is a little better, but government funded health care is fraught with problems (some people actually take money and give no services) and too many people are eating at the table that did not put anything in the bowls. 

    This health care is not afordable now and I can not see how it could be in the future. It is not 100% like the MA health care and that one has problems (so says my daughter who lives there), but it is marinal effective and costs have not gone up much more that MA thought it would. A fight about this is coming, you need to have info to give your reps.

    Do not take the words of others in this, do some research and come to your own opinion.

  2. JoeWeinstein says

    Peeler’s analysis parallels that of others, but his featured special conclusion claims that  Roberts handed Republicans a “bludgeon”, in that – per Roberts’ opinion – the penalty for failure to buy medical insurance can be construed as a ‘tax’.    

    Peeler’s accusation is silly and far too clever, and gives Roberts far too much credit.  After all, no matter how the decision would have gone, Republicans were ready to be – indeed already were – calling that penalty a ‘tax’.  If it suits propaganda postures, Republicans don’t bother to be too sophisticated about precise legal – or for that matter even nonlegal – definitions.  Stretched metaphors – whether or not based on reality – will suffice.  For instance, a group of doctors being consulted about effective life-and-health preserving strategies can be called a ‘death panel’.    

  3. Garychomiak says

    I think Roberts caved in on this one.  I think he was afraid of the backlash from American citizens that the court is dominated by the right wing and not able to make impartial decisions.  I think he felt his side could lose on healthcare, giving the semblance of impartiality.  I think he acted out of his own best interests and not the best interests of the Supreme Court and the people of the United States of America.  This is what I think, I could change my mind about him later when he makes a decision on Same Sex Marriage.

    • Hwood007 says

      The gays in my family support gay unions with the legal rights written into a federal civil law, not statelaws, which could all be different. Does not seem to be much of a chance for this even though it would be faster and much better as far as standards being alike.

  4. Hwood007 says

    Attached Message
    To:Subject: A message from Blue Cross Blue ShieldDate:Thu, 28 Jun 2012 16:40:22 -0400 (EDT)
    MEDICARE Look carefully at the 2014 rate compared to the 2013 rate.

    For those of you who are on Medicare, read the following. It’s short, but important and you probably haven’t heard about it in the Mainstream News:

    The per person Medicare Insurance Premium will increase from the present Monthly Fee of $96.40, rising to:

    $104.20 in 2012

    $120.20 in 2013


    $247.00 in 2014.”

    These are Provisions incorporated in the Obamacare Legislation, purposely delayed so as not to confuse the 2012 Re-Election Campaigns. Send this to all Seniors that you know, so they will know who’s throwing them under the bus. Peggy Riehle Internal Representative Network Contracting so much for medical costs not increasing one dime, it is dollars instead.

    • Hwood007 says

      Did some more research on this and the costs do not increase as much as indicated in this remark.  Do not know where Peggy got her figures, but that are high.

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