The social-legislative fallout of Thursday's Supreme Court decision on the Affordable Care Act is fairly clear, even though many details remain to be worked out, and many obstacles to its full implementation exist. The political import is less clear, yet I'd argue it may be the more important element in terms of its long term effects.
Chief Justice Roberts's move to vote with the Court's "liberals" was a big surprise to all and, by some accounts, came rather late in the deliberative process. (Now, at least, we know why Scalia was so surly earlier in the week - we know, but we should not excuse his lack of professionalism.) We may never know what prompted Roberts to do so. On the surface, it can be said that he wanted to apply law and keep the decision divorced from the question of whether the Act is wise or effective legislation, which would be Congress's decision. That's admirable, and what we would expect from all Justices. Would that the others had also felt the same compulsion.
One commentator I read suggested Roberts had now "cemented" the Court's reputation for above-the-fray impartiality. Not so. The Court has a long way to go on that. I would say this vote began the process of rebuilding that reputation out of the very tattered remains of what it used to be. Still, the issue of reputation is important and probably the real clue to the Chief Justice's surprising vote. It may be more correct to suggest that Roberts wanted to back away from the impression that the Court has been meddling in political matters, without necessarily ceasing the actual meddling.
Roberts's purportedly unbiased decision nevertheless has some very real political consequences:
- Labeling the "individual mandate" a "tax" (and therefore constitutional) clearly offers the Republicans who oppose ACA an ax-handle that will unquestionably help them in their legislative fight to defeat sensible health care. People are irrationally against "taxes" so it's a label that politicians avoid, for good reason.
- Roberts succeeds in hitting the reset button on several more decades of law when he opines that the ACA mandate can't be justified constitutionally under the interstate commerce clause. This leaves the door open to future challenges to, and restrictions on, the use of the that clause, or to existing social legislation that depends on it.
- Roberts took on the writing of the opinion so that he could craft these subtle but important shifts in constitutional law.
The Chief Justice may be completely sincere about restoring the Court's apolitical reputation; he may be totally earnest about not letting the Court impinge too far on the lawmaking prerogatives of Congress ... but we'll need to see a lot more evidence of that. Meantime, call me untrusting, but I have an odd feeling that having observed the Court pick a President in 2000, Roberts (who wasn't on the Court at the time) might have though it sounded like fun and wanted to try it himself.
The only favor he may have done the President by saving ACA is to have made him the first President to have passed a solid, comprehensive health care law. Whether or not the GOP succeeds in killing it; whether or not Obama is reelected; that's a major and historic achievement he can be proud of.