I sure didn’t see that one coming. Perhaps like most observers, I expected that if the Supreme Court upheld "Obamacare" as constitutional, it would probably be a 5-4 verdict with the opinion written by Justice Anthony Kennedy, who has developed a well-deserved reputation as the purportedly moderate “swing” vote in a nine-member panel that includes four dependably conservative justices and four dependably liberal ones.
I sure didn’t see that one coming.
Perhaps like most observers, I expected that if the Supreme Court upheld "Obamacare" as constitutional, it would probably be a 5-4 verdict with the opinion written by Justice Anthony Kennedy, who has developed a well-deserved reputation as the purportedly moderate “swing” vote in a nine-member panel that includes four dependably conservative justices and four dependably liberal ones.
But again probably like most observers, after the oral arguments over Obamacare’s constitutionality went so disastrously for the Obama administration in March, I thought the Supreme Court would most likely strike down the falsely-named Patient Protection and Affordable Care Act as unconstitutional, either nullifying the whole law or at least rejecting the individual mandate — and I figured it would probably be a 5-4 verdict with the opinion written by Chief Justice John Roberts.
Well, the court upheld Obamacare as almost entirely constitutional by a 5-4 verdict alright, including the slave-making individual mandate — but Kennedy joined Antonin Scalia, Clarence Thomas and Samuel Alito in voting to nullify this legal monstrosity in its entirety, while Roberts wrote the majority opinion upholding the law.
It’s so unexpected, and the ruling is such a drastic departure from judicial precedent and from conservative judicial philosophy, that many people are wondering if Roberts improperly took political considerations into account.
Jan Crawford of CBS News reports that Robert initially sided Kennedy and the court’s three conservatives but switched his vote. Kennedy strenuously tried to convince Roberts to return to his original position, and it is probably significant that when Kennedy read Scalia’s dissent aloud from the bench — notice, Kennedy read it, not Scalia — he was unmistakably angry.
Apparently the vote at first was 5-4 to strike down at least the individual mandate, with Roberts joining or leading the majority, but Roberts changed his vote and crafted a new opinion that found a way to uphold the individual mandate and the Medicaid expansion that the liberal justices could join. Was Kennedy’s anger motivated not just by this ruling’s attack on our republic’s federal system, but in part by a sense that he and his conservative colleagues had been betrayed?
I think that’s what happened. But we also have to ask if Roberts was doing something other than simply following the law and judicial precedent in an aloof and impartial manner. Did he also have an eye on the presidential election now heating up?
David Bernstein at the Volokh Conspiracy asks, “(W)as he responding to the heat from President Obama and others, preemptively threatening to delegitimize the court if it invalidated the ACA?”
It’s a good question. More than once Obama has demeaned himself and shown disrespect for the separation of powers by attacking the Supreme Court, and he and his campaign have shown themselves to be rather more ruthless and unprincipled than average (which is saying a lot, especially when Obama’s rival is someone like Mitt Romney). Attacking the court’s integrity and independence is certainly not beneath them.
But perhaps it wasn’t a concern about the left’s stated and implied threats. If the court had struck down Obamacare, it would have been a major political defeat for Obama. No matter how solidly grounded in law and logic it was, such a ruling would have been perceived by many, and easily painted, as a partisan maneuver. It’s important that judges seek to avoid both actual partisanship and partiality in their rulings as well as their appearance.
The most ridiculous theory is that Roberts had an eye on November, irresponsibly gambling that if he upheld Obamacare, conservatives would work harder than ever to win the White House and the Senate.
I find all of these scenarios unpleasant to contemplate, because none of them speak well of Roberts’ judicial integrity. But the fact that we’re contemplating them at all shows that, if Roberts were trying to avoid the appearance of being politically compromised, he failed.
This I’m sure of, though: his unjust ruling logically and legally makes no sense, and intended or not, his ruling has stirred up the GOP and tea party.
Jared Olar may be reached at email@example.com. The views expressed in this column are not necessarily those of the newspaper.