[This article also appears on Huffingtonpost.com. You can access it from my author page here.]
The U.S. Supreme Court upheld the constitutionality of the individual mandate of the Affordable Care Act Thursday, and I, of course, am very happy about that. It means that tens of millions of Americans without insurance--from kids in their 20s who can stay on their parents' policy to people with pre-existing conditions who are denied insurance to those who can't afford coverage--will receive health care in the years ahead. The Affordable Care Act may not have been the best way to go (a system with a public option or simply offering Medicare for all would have been better in many ways), but the Affordable Care Act is vastly superior to what we had before.
The Court's decision has resulted in a steady flow of excited, congratulatory proclamations from those who support health care reform. I wish the story was as uniformly positive as it seems.
In the Affordable Care Act ruling (National Federation of Independent Business v. Sebelius), Chief Justice Roberts joined the Court's four liberal justices to uphold the individual mandate. But it's important to note that he did not do so under the Constitution's Commerce Clause, as the government asserted and as the four liberal justices accepted. Roberts explicitly found that the act would NOT be constitutional under the Commerce Clause, something on which the four other conservative justices agreed. Instead, Roberts found that the individual mandate was a constitutional exercise of Congress's power to collect taxes.
Some will ask: Who cares? That is, the Court let the act stand, people will get medical care, so what's the difference which legal principle the chief justice used to uphold the law? The answer is that while Roberts's approach worked in the Affordable Care Act case, it actually furthers the Court's politicization and increasing hostility to Congress's power to enact legislation.
The Commerce Clause is a tool through which Congress has traditionally been able to legislate on matters conservatives would rather they stay out of. Congress's taxing power covers only a limited array of issues. So it's clear that by choosing taxation over commerce, Roberts was able to vote to uphold the act without doing anything to endorse Congress's ability to make laws under the Commerce Clause, which would have gone against his conservative agenda.
Since Roberts took over in 2005, he and his allies--Antonin Scalia, Clarence
Thomas, Samuel Alito and, often, Anthony Kennedy--have sought to move
the Court not just to the right, but so far to the right that the
rulings are reminiscent of the late 19th century/early 20th
century era in which the Court was hostile to government and protective of corporations. The Court's limits on federal authority would
have been viewed as being on the conservative fringe just 20 years ago.
The political/ideological question at the center of the Affordable Care Act challenge was the limit of federal power. The Tea Party-owned Republicans in Congress and state legislatures across the country have been pushing to limit the power of Congress to enact laws, especially those that affect business. And the Court, which has grown increasingly political under Roberts, has been doing everything it can to help.
As a recent study by the Constitutional Accountability Center found, the Roberts court, since he took over in 2005, has largely ruled in a manner that has been pro-business and anti-consumer/individual. While the Burger court's rulings upheld the position of the U.S. Chamber of Commerce in 43 percent of cases, and the Rehnquist court sided with the Chamber 56 percent of the time, the Roberts court has backed the Chamber on 68 percent of its cases, including every decision in the 2011-2012 term through the date of the release of the study (June 21, 2012).
The political nature of the Roberts court was on full display in 2010 in Citizens United v. Federal Election Commission, in which the Court, in the ultimate pro-corporate opinion, overturned decades of Court precedent on campaign finance regulation to give corporations virtually untethered power to spend money on elections. The majority opinion makes the laughable assertion that heavy financial contributions do not give rise to corruption or the appearance of corruption, and the Court stood by that laughable premise when it struck down a Montana campaign finance law last week without benefit of full briefing and oral argument in which the state was prepared to provide empirical evidence of corruption.
Even the manner in which Citizens United was decided was political in a way that would have seemed unthinkable in recent Supreme Court history. The original oral argument and briefing was on the exceedingly narrow question as to whether a documentary would fall under the purview of the challenged provisions of the Bipartisan Campaign Reform Act (also known as McCain-Feingold). But the Court instructed the lawyers to reargue and rebrief the case on the larger question of the provisions' constitutionality.
As Jeffrey Toobin put it in his account of how the Citizens United decision came together: "So, as the Chief Justice chose how broadly to change the law in this
area, the real question for him, it seems, was how much he wanted to
help the Republican Party. Roberts’s choice was: a lot."
The blatantly political approach employed by Scalia (as well as his
frequent allies Thomas and Alito) was on full display on his dissent in
the Court's recent decision
overturning key provisions of Arizona's draconian immigration law.
Scalia's attack on President Obama was so direct and political (and
non-judicial) that mainstream publications, which often are so
uninterested in the inner working of the Court that they don't even name
any of the justices in reporting on decisions unless they write the
main opinion, started questioning Scalia's naked practice of politics.
The Los Angeles Times reflected this sentiment when it asked in a headline: "Did Justice Scalia Go Too Far This Time?"
It seems to me that the negative public reaction to Citizens United and a recent New York Times/CBS News poll showing the lowest approval rating for the Court in decades might have played a role in Roberts voting to uphold the Affordable Care Act. After all, if the Court had found the mandate unconstitutional, it would have been largely viewed as an overtly political decision, an example of legislating from the bench. But even in upholding the constitutionality of the mandate, by basing his vote on Congress's taxing power, Roberts was allowed to dodge the charge of being political without impeding the Court's ongoing commitment to the Republican/Tea Party goal of limiting federal power (including under the Commerce Clause). Roberts was able to take a loss in this one case without hurting his larger pro-business, anti-federal agenda.
So through the lens of health care policy, the Court's decision upholding the individual mandate of the Affordable Care Act is both important and welcomed. But we shouldn't lose sight of what Roberts's maneuvering on the case means for the Court's future decisions. While Roberts might have reluctantly opposed the GOP on health care, his vote on the case did nothing to slow down his fringe right-wing, anti-federal, pro-business agenda from moving forward, full steam ahead.