Chief Justice John Roberts arrived on the Supreme Court in 2005 full of promises to dial down the partisan rhetoric and foster the Court’s reputation as a fair-minded forum, not a food fight. But if the liberal Justice Ruth Bader Ginsburg and the conservative Antonin Scalia can be believed, this momentous term will end bitterly Thursday with a divided opinion on the fate of Obamacare. The food will be flying.
Ginsburg and Scalia have both hinted recently that the Court was unable to find a middle ground on the fate of President Obama’s signature legislation. Certainly the legal commentators watching the Court haven’t seen eye to eye. On the left, experts say there is no doubt that the massive law is constitutional—including the requirement that uninsured Americans buy health insurance or pay a fine. On the right, the individual mandate is seen as an obvious intrusion on liberty—the federal government can’t force Americans to buy something they don’t want.
Readers of the secretive court’s tea leaves predict that Roberts himself is writing the deciding opinion—potentially the most far-reaching court action in decades, with the potential to upend two years of work to reform an industry that covers one-sixth of the U.S. economy. With a 2,700-page law at issue, and multiple challenges to be decided, the menu of possible outcomes is mind-boggling.
But if Roberts is indeed the author, the decision will shed light on which values he holds most highly: the Court’s image of fair-mindedness, or the purity of his conservative principles.
Challengers to the law made a strong conservative case—much stronger than Obamacare defenders had expected—that the individual mandate crosses the line into excessive government power. How can Congress’s authority to regulate interstate commerce reach into the pockets of citizens who aren’t part of the commerce? If Congress can make people buy private insurance, what else can they make us buy?
It’s possible that Roberts has joined the four other conservative Justices on the court to strike down the mandate. And if that’s the case, it’s not clear whether any of the myriad provisions of the law would survive. As Justice Anthony Kennedy, the Court’s swing vote on many of its politically charged cases, said during oral arguments in March, the conservative path might lead the court to send the entire law back to Congress if any part is found unconstitutional. For it is the job of Congress, not the Court, to decide what the law should look like after a key element is struck out.
But it’s also possible to look at the same tea leaves and imagine that Roberts has been busy crafting an opinion that will give something to both sides. He could join the conservatives in striking down the mandate, and perhaps other provisions related to private insurance—but side with the liberal Justices to preserve other elements of the law, such as an expansion of Medicaid to provide for millions of Americans who currently lack coverage.
The Court’s ruling earlier this week on Arizona’s immigration law showed that the Justices are capable of taking a hot-button issue and finding a solution that gives at least a slice of victory to everyone at the table. But during the life of the Roberts Court, the Chief Justice has shown himself willing to take a narrow conservative majority into battle over such divisive issues as abortion, affirmative action and campaign finance laws. Would he do any different with Obamacare?
Supporters of the law hope that they will see a third version of John Roberts: neither the hardliner nor the blanket-splitter, but the crafty operator. In this scenario, the court has a majority of votes ready to uphold the law, and Roberts joins the group so that he can assign himself to write the opinion. In this way, though he disagrees with the outcome, he retains the power to shape the way it is expressed.
Which John Roberts will we see today? A law school seminar could keep busy for hours debating the likelihood of each of these possibilities. Indeed, court-watchers have discussed little else for weeks now. They won’t have to wait much longer for their answer: at 10 a.m., Eastern Daylight Time, Roberts is scheduled to take his seat at the center of the 9-Justice panel to deliver the verdict of the Court he leads.