People are naturally wondering why Justice Roberts changed his mind as the Court considered the decision it would render on the Affordable Care Act. Some news analysts suggest Roberts wanted to protect the Court’s reputation, and changed his vote with that thought in mind. He remembered how much criticism the Court received after it decided in favor of Bush in Gore v. Bush in 2000. He did not want to make a mistake of similar magnitude again, nearly twelve years later.
That is a bad way to make Supreme Court decisions. When you can’t please everyone – in fact, when you know you will displease a multitude no matter what you do – you can’t fall back on poor reasoning to try to save your reputation or your skin. Caution is a virtue in politics, but it is not always a blessing.
So we have to ask, how can misplaced caution be sound reasoning for a judge? The huge mistake the Court made in 2000 was being too sensitive to the public’s desire to get the whole election process over with. “We want results!” the journalists said, “We can’t let this sad business in Florida drag out.” However messy Florida’s recount, though, the Court had no authority to adjudicate a tie in that state’s presidential vote. Only Florida’s secretary of state, and the rest of the state’s electoral apparatus, held that authority. The Court should not have stepped in, and its reputation suffered because it did.
For the ACA, the Court’s place was to adjudicate the issues brought before it on appeal. We don’t pay Supreme Court justices to consider public opinion, though. We want them to craft opinions based on the Constitution, or on our Constitution and our political traditions if the Constitution alone does not give clear guidance.
Crafting an opinion that pays even a smidgen of attention to public opinion is a blunder one doesn’t expect from a chief justice. Roberts knew he would displease a lot of people no matter what he did. That’s all the more reason he should have based his opinion on sound legal reasoning. Apparently Justice Kennedy tried hard to persuade Roberts not to change his mind – that is, to side with the Court’s conservatives. I wish we knew the reasons Kennedy gave in his arguments.
The Court faced a difficult political problem. First, ACA supporters and opponents are as deeply divided as any two groups can be. Compromise did not seem possible during the legislative struggles of 2009, and it certainly has not become more likely over time. ACA supporters say the Court should not strike down a law this consequential merely because it is imperfect. ACA opponents say the Court should not uphold a law that is so imperfect it is bad law.
Roberts recognized this problem, of course, and his majority opinion reveals his response to it. The two factions – ACA opponents and supporters – each wanted the decision to go their way, and their initial reactions to it would be based on whether their side won or lost. Over the longer run, though, people will judge the Court based on the quality of its reasoning, not whether the referee found for the home team or not. To find for the home team – that is, uphold an existing act – Roberts had to call a penalty a tax. To take a lemon and prescriptively redefine it as a pomegranate in order to get the outcome you want is just slipshod and not worthy of any court, let alone the Supreme Court.
Since we’ve been talking about the politics of the Court’s decision, we should consider its impact on the presidential campaign. Obama has a difficult problem now. Romney and the Republicans want to make a big deal out of the ACA between now and November. They already have. Obama can take the attacks in silence for four months, or offer a vigorous defense of the Act. Given the results of the 2010 congressional elections, he has chosen not to defend the act, except in court, for the last year and a half. If he suffers in silence this summer and fall, he stands a good chance of losing in November. Offering a vigorous defense might appear more risky, but may yield his best chance of a second term.
My own negative judgments of the ACA are well developed in other posts. I imagine I would not be so critical of Roberts or his reasoning if I liked the ACA and wanted to see it preserved. In fact, the Democrats cannot be altogether pleased with the Court’s decision. The majority opinion found that the Constitution’s commerce clause does not give Congress authority to mandate purchase of health insurance. The commerce clause is the justification the Democrats have used to give legitimacy to the law’s the individual mandate.
As the Court rejected the commerce clause rationale, it changed the mandate’s fine for non-compliance from a penalty to a tax. Congress has authority to lay taxes of any kind, so the Court found that the individual mandate and the ACA more generally meet constitutional requirements. Nevertheless, Democrats have never wanted to defend the individual mandate’s fine for non-compliance as a new tax. As one article said today, the Democrats just want to change the subject, even though they won. If they can’t change the subject, or find some way to placate voters’ anger about the ACA, they’ll have to undergo a long and painful presidential campaign.