It's Roberts's Court Now

(AP Photo/Nick Ut)

For months before today’s announcement of the Supreme Court’s decision in the Health Care Cases, the conventional wisdom had centered on two things: (1) The vote would be 6-3; and (2) Chief Justice John G. Roberts would write the opinion. Roberts would jump the way Justice Anthony Kennedy jumped and then write the opinion to shape doctrine for the future.

It’s a good day for conventional wisdom when it is half right, but that the Affordable Care Act (ACA) survived, 5-4, with a majority opinion by Roberts and an angry dissent by Kennedy was an outcome few people would have predicted.

All told, it was a morning of surprises. It was a good morning for the Obama administration, whose signature policy initiative (for good or bad) survived largely intact.

But it was a better day for John Roberts, who displayed John Marshall-level command of the Court, and produced a result that moves current jurisprudence only a little—but will enable it to move far to the right if a Republican victory in the fall brings him an additional vote.

Briefly put, the Court (by shifting majorities) held that

(1) the “individual mandate” survives. Requiring individuals to maintain health coverage was not justified by Congress’s power to regulate “commerce ... among the several states”; however, since the current mandate is enforced by a tax penalty, it is justified by Congress’s power to “ lay and collect taxes.”

(2) the expansion of Medicaid survives (yes, you read that right). The new provisions can offer the states massive funding if they agree to modify their programs to cover more poor people; however, they cannot enforce the condition by cutting off all Medicaid funding to states. The federal government can withhold only the new funding to states that decline to join. Since the federal government had no intention of withholding previous funding, this poses no obstacle to the Medicaid expansion.

In every practical sense, then, the ACA survived its near-death experience. Four Justices—Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito—wanted to kill the program entirely, voiding the mandate, scotching Medicaid expansion, and striking the rest of the massive statute for good measure. A fifth vote would have ended the possibility of federal comprehensive health-care legislation for a generation.

At the same time, Roberts has given the Court important new doctrinal tools to limit Congress’s use of both the commerce and spending-power clauses—a long-term project dear to the heart of the legal right. The “no mandate” rule puts yet another roadblock in the path of congressional regulatory schemes—not all future programs can be enforced by tax law. Even if the Court had upheld the commerce power as a source of the “mandate,” Congress would probably not ever have passed another such mandate, for political reasons. But the language of the commerce-clause section gives the Court new options for attacking congressional regulation of the economy. And, as Justice Ginsburg pointed out in her full-throated liberal-bench dissent, the Court had never before struck down any use of the spending power. Now it has that weapon at its disposal.

The lineup of the justices shows how adept Roberts is at building alliances. On the commerce-power issue, he allied with the four conservatives. On the taxing-power issue, he added his vote to the four moderate liberals. On the Medicaid issue, he summed the four conservative votes to forbid the Medicaid expansion altogether, with his own vote and that of the two newest Justices, Sonia Sotomayor and Elena Kagan, for the more limited “no total cutoff” rule. 

Until today, some observers had suggested that this is really the Kennedy Court, dominated by the swing-voting Sphinx of Sacramento. But Kennedy today was an angry loser. It is now unquestionably the Roberts Court. He has taken the Court out of the line of fire in 2012, which underlines, for those who watch these things, how important the next election will be for the direction of constitutional doctrine.

Obama won a battle today. But Roberts is planning a long campaign, which will go on long after Obama has left office.

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