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June 29, 2012

The rule of law: alive and well?

by: Jodi Westbrook Flowers

The Supreme Court ruling upholding the vast majority of the Affordable Health Care Act had immediate consequences visible to all from the moment reporters rushed from the court to the waiting cameras, microphones and partisans in the debate who were anxiously bracing themselves on the building’s steps. The most obvious consequence was the next stage in the political battle over the future of health care reform. Its proponents were obviously buoyed by the decision, but they know this battle continues with them right up to November. Its opponents know the same.

So what did happen in this decision? Some of the Act’s supporters claim the law won out over a partisan shadow that has darkened the court’s reputation since the 2000 Bush v. Gore decision. Others who oppose the law believe intense media and public scrutiny drove Chief Justice John Roberts to abandon his conservative principles. They claim Roberts tried to placate all sides by first siding with the more conservative justices in ruling that the mandate overreached congressional powers under the Commerce Clause of the Constitution … then joined more liberal justices to uphold the power to penalize or “tax” the mandate into existence under the federal government’s taxing authority.

Linda Greenhouse, a veteran Supreme Court reporter, wrote of Robert’s decision to join the majority in upholding the law in The New York Times:

His decision to call the mandate a tax and to provide a clearly reluctant fifth vote for upholding it as within the Congressional taxing power was a deeply pragmatic call that saved the Affordable Care Act. Certainly by no coincidence, it also saved the Supreme Court from the stench of extreme partisanship that has hung over the health care litigation from the moment more than two years ago that Republican state officials raced one another to the federal courts to try to erase what they had been unable to block.

It is true that Roberts wears two hats in his position. Wearing one, he is a life-long conservative appointed to the Supreme Court by the equally conservative President George W. Bush. Wearing the second, he is the Chief Justice and feels the responsibilities incumbent in that position to protect and defend the Court’s most prized attribute—impartiality. The law lives on impartiality—the rest resides in the political domain. Therefore, perhaps it is best to take him at his word when he writes that policy judgments:

[A]re entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect people from the consequences of their political choices.

Some read a stinging rebuke in these and other words in the decision penned by Roberts. However, the bottom line is that the law remains the law. Congress and the Administration’s negotiated solution to the very entrenched problem of health care access for all has been deemed constitutional.

The Court did strike one provision—the Medicaid expansion provisions which were deemed overly coercive to the states. However, the Chief Justice ultimately crossed what was seen by many as a line in the sand and let the vast majority of the law remain whole. If his desire was to erase the partisan shadow on the court, then this decision and the Arizona immigration law decision (where he also crossed over a perceived line to join the majority) have been mighty efforts in that direction.

There is also a subtle nuance here. Before crossing to join the more liberal wing of justices, Roberts sided with the conservatives to strike down the mandate as defendable under the Commerce Clause. That may open the door to a whole new set of opinions to come on the usage of the Commerce Clause. This is something conservatives have longed for. Justice Ruth Bader Ginsberg wrote that the decision to take this action had no “home in the text of the Constitution or our decisions.”

It seems the law is alive and well, but it must coexist with debate and politics. These are complicated issues. Hopefully, the answer to the question of the future impartiality of the Supreme Court is not complicated.