You don’t have to love classical music to be amazed that Beethoven wrote his Ninth Symphony while deaf or be a fan of the old New York Giants to marvel at Willie Mays’ catch in Game 1 of the 1954 World Series.
For legal buffs, the virtuoso performance of Chief Justice John Roberts in deciding the biggest case of his career was just that sort of jaw dropper, no matter how they might feel about Obamacare.
Not since King Solomon offered to split the baby has a judge engineered a slicker solution to a bitterly divisive dispute. With his fellow Supreme Court Justices split 4-4 between two extreme outcomes — blessing the sprawling health care law or killing it — Roberts maneuvered half the court into signing half his ruling and the other half into endorsing the rest. He gave the liberals their long-cherished dream of government-led reform while giving his fellow conservatives new doctrine to limit congressional power, which they have been seeking since the New Deal. With the court’s approval ratings at record lows and supporters of President Obama grimly predicting a legal travesty — or even a judicial coup — Roberts somehow cloaked a win for right-leaning legal theory in the glittering garb of a triumph for the left. And the Democratic swords that were being sharpened for an election-year war against the court were hammered into trumpets with which to herald the statesmanship of the Republican Chief Justice. “Whatever the politics, today’s decision was a victory for people all over this country,” the President declared after the ruling. Sharp-eyed conservative commentators — George Will and Charles Krauthammer, for example — read the fine print and agreed, though for very different reasons.
Of course, some on the right refused to see a silver lining in this defeat snatched from the jaws of victory. “The particular tragedy is that four Justices would have overturned … all of Obamacare as unconstitutional,” the Wall Street Journal editorial board lamented. “Only John Roberts prevented it.”
The fact that Roberts had to squirm like Houdini to reach middle ground (in the second part of his ruling, he held that the mandate to buy insurance is not a tax, but by the third section he announced that it is) only enhanced the bravura of the feat. As the saying goes, it’s one thing to dance like Fred Astaire, but Ginger Rogers did it backwards in high heels. Philosophical purity is easy — the blogosphere is lousy with it — while pragmatic solutions to difficult problems are as rare these days as virgins on Jersey Shore.
As such, the Chief Justice’s ruling confounded a political world primed for Armageddon: the spectacle of five Republican appointees striking down the signature achievement of a Democratic President in the midst of a tough re-election campaign. After a party-line vote by the court to decide the disputed 2000 election for George W. Bush over Al Gore, and another in the controversial Citizens United campaign-spending case, the Washington atmosphere reeked of gasoline, and the Obamacare case looked like a match ready to fall.
When Roberts, a handsome guy of 57 raised in upstate New York and small-town Indiana, took his seat at the center of the bench on June 28, the final day of the court’s term, and began reading aloud from his opinion, he sounded at first as if he were striking the match. The conservative critique of the so-called individual mandate was correct, he intoned: Congress lacks the power to require citizens to buy insurance they don’t want. The other four Republican appointees agreed. Since the court ruled in 1942 that under the commerce clause, Congress could prohibit a farmer from growing wheat for his personal use, conservatives have been trying to rein in this ill-defined power, and here was Roberts drawing the line. Bulletins flashed at Fox News and CNN, and Klaxons rang battle stations all over the nation’s capital.
But then, as Justice Antonin Scalia, the redoubtable hero of the right, looked on sullenly, Roberts rescued the law by saying the mandate is actually a tax levied by Congress on a citizen’s decision to forgo insurance — and thus passes constitutional muster. Now the Democratic appointees sided with the Chief Justice, and whipsawed Washington was left dizzy. The case had not been decided, as most court watchers expected, by the unpredictable Anthony Kennedy, the Justice who normally casts the swing vote in close cases. The rest of the session passed in a blur, and with a nod of his head to solicitor general Donald Verrilli Jr., whose weak performance at oral argument had left Obamacare supporters in despair, Roberts headed toward summer vacation. In his wake he trailed mystery: why had he seized the steering wheel? Had he gone squishy — another in the long line of Republican disappointments on the court, stretching from Harry Blackmun to David Souter? Was it that endangered creature, a sober compromise designed to give something to everybody? Or was this a clever ruse to buy political cover for the court conservatives to ramrod their agenda in future terms?
John Q. Barrett, a law professor at St. John’s University and biographer of the late Justice Robert Jackson, a favorite Roberts role model, dismissed the conspiracy theories. The ruling was a classic example of a cautious Chief Justice at work, he said. “I think that chiefs feel, for the public credibility and independence of the court, that major legislation should not be struck down on a 5-to-4 vote on grounds that Congress lacks the power. It hasn’t happened in the modern era — since the 1930s. John Roberts will likely be Chief Justice for many, many more years, and it’s not surprising to me that he wasn’t looking to define his court stewardship with a radical decision. The opposite ruling would have been a deeply, permanently controversial landmark.”
But cautious does not equal bland. By setting a limit on congressional power to regulate the nation’s commerce — and by ruling that Congress cannot use its spending power to force states to greatly expand Medicaid coverage — Roberts blazed legal trails that conservatives have long dreamed of. How far down those paths the court will go in future terms is anyone’s guess, but the liberal Justice Ruth Bader Ginsburg was sufficiently worried about these precedents that she wrote a lengthy dissent even though she had gotten the end result she wanted: Obamacare was upheld. And her three liberal colleagues substantially agreed with her.
The four dissenters on the right, meanwhile, left no doubt that they were ready to plunge ahead toward greater limits on the power of the federal government. “The fragmentation of power produced by the structure of our government,” they wrote, “is central to liberty, and when we destroy it, we place liberty at peril.” Their rare jointly written opinion left some analysts wondering if Roberts had jumped ship from his conservative colleagues at the last minute; his “verbal wizardry,” they seethed, went “deep into the forbidden land of the sophists.” Their preference would have been to strike down the entire 2,400-page law, every word of it, and let slip the dogs of war.
So it’s back to the salt mines for the legions of government workers and health care providers charged with implementing the ambitious reforms, which seek to beef up the Medicaid program for low-income Americans and open the private insurance market to all comers, regardless of health status, and thus cover tens of millions currently lacking insurance — all while cutting health care costs, at least in theory. To its supporters, the Affordable Care Act is an elaborately integrated work of engineering exquisite enough for Steve Jobs. Critics of the law would say Rube Goldberg. Either way, it is the most sweeping piece of domestic legislation in decades, and striking it down would have sown further chaos in the already unruly medical marketplace.
And back to work as well for the Democrats who have thus far failed to make Americans fall in love with their pet program. A recent memo from Gallup summarized the latest poll results on the eve of the Supreme Court’s action and found that “although President Obama and his supporters predicted that Americans would become more positive about the law after it passed and they had time to better understand it, that has not been the case. Americans appear as negative or more negative now than they were” when the law was passed in 2010. An Associated Press/GfK survey in mid-June found that 47% of respondents opposed the law, compared with 33% who supported it, and even most Democrats believed the individual mandate was unconstitutional when Gallup asked the question in February.
Which is why Obama let the two-year anniversary of the law pass by in silence in March. When he did talk about health care reform on the campaign trail, he tended to focus narrowly on such popular provisions as the requirement that private insurers allow young adults up to age 26 to remain on their parents’ policies. Virtually no one is against that provision.
But after digesting the Roberts ruling, the President hit the reset button on his efforts to sell the program. In remarks from the East Room, with the stately central corridor of the White House exuding authority in the background, he promised that “insurance companies can no longer impose lifetime limits on the amount of care you receive. They can no longer discriminate against children with pre-existing conditions. They can no longer drop your coverage if you get sick. They can no longer jack up your premiums without reason.” Americans who currently lack insurance will no longer be free riders on the health care system, while people who already have coverage can keep it, Obama said. (The Congressional Budget Office is not so sure about that last point. Its report in March cited a “tremendous amount of uncertainty” about the effect of the law on employer-based coverage and estimated that as many as 20 million fewer Americans will get insurance through their employers by 2019.)
The court added a new layer to the uncertainty when it ruled, by a strong 7-2 margin, that the federal government cannot force states to adopt the Medi-caid expansion that is central to the quest for universal coverage. Twenty-six states joined the successful challenge to a provision of the law that would have stripped existing Medicaid funds from states that don’t get with the program — including Texas, home of the largest number of uninsured residents. How many of those states will now opt out, and how many millions will thus fall through the cracks, remains to be seen. Some experts worry, though, that fewer people covered by Medicaid will mean more people requiring federally subsidized coverage through new private insurance exchanges. That could substantially increase the sticker price of reforms. Roberts’ ruling on the Medicaid provisions of the Affordable Care Act will open the door to new state challenges of other Washington our-way-or-the-highway mandates — and soon. It is both an example of Roberts’ balancing act and another win for the antifederalists.
The Political Impact
If Obamacare has proved to be a hard sell for the President, it is better than having nothing to sell at all. Roberts not only shielded his branch of government from charges of rank partisanship with his ruling but also granted partial immunity to Obama from the indictment that he spent the first year of his presidency fiddling over an unconstitutional overreach while the economy was burning.
Obama aides say he never doubted the outcome. After all, his long journey toward health care reform — the Democratic grail since Harry Truman was rocking double-breasted suits — has been nothing but cliffhangers and happy endings, from his perspective. After all the speechmaking, deal cutting, vote rustling and budgetary legerdemain that went into eking the bill through the Senate, he couldn’t believe it would die in the hushed and secret chambers of the high court. That the individual mandate might prove fatal was too rich an irony. After all, the idea was originally hatched at the conservative Heritage Foundation and embraced by Republican Mitt Romney before he spurned it. Campaigning against Hillary Rodham Clinton for the party’s nomination in 2007 and 2008, Obama insisted that an insurance mandate wasn’t necessary, but as President he went along with the idea as a way of securing a few desperately needed votes in his own party. For obvious political reasons, he shied away from calling the mandate a tax.
The political impact of the decision is likely to ripple through the election season in ways that jostle every boat, including the President’s, and Obama acknowledged the rough seas ahead. “I didn’t do this because it was good politics,” Obama said of the newly validated law. Republicans rushed to try to prove his point. “Winners celebrate,” said veteran Washington watcher William Galston in the aftermath. “Losers mobilize.”
Immediately, GOP leaders latched onto the court’s finding that the individual mandate was a tax and claimed that Obama had deceived the public when he insisted that his massive reform plan would not raise taxes. “Obama lied to the American people. Again,” Sarah Palin tweeted briskly. “He said it wasn’t a tax.”
Romney wasted little time in reacting. Standing atop a Washington office building with the Capitol dome looming over his shoulder, he promised to repeal the health care law if elected President. “Our mission is clear,” he said. “If we want to get rid of Obamacare, we’re going to have to replace President Obama.” That’s a theme that has worked well for Republicans in congressional races, going back to Scott Brown’s surprise win in the 2010 race to fill the Massachusetts seat of the late Senator Edward Kennedy. Polls show little appetite for repeal among independent voters, but for the Republican base, the Roberts ruling was cause for downing a quart of Red Bull.
Sure enough, when Romney came down from the rooftop and returned to fundraising, he found that the Chief Justice had unlocked a lot of checkbooks. The Republican campaign said it raised more than $4 million in the first 24 hours after Roberts announced his decision. As Steven Law, president of the GOP super PAC American Crossroads, confidently predicted, “this decision will drive Republican voter intensity sky-high.” One day after the Roberts ruling, the super PAC’s political affiliate Crossroads GPS updated an ad it was running against North Dakota Democrat Heidi Heitkamp, a candidate for the U.S. Senate, to claim that she had, in backing health care reform, raised “half a trillion dollars in taxes on Americans.” That language is sure to be coming soon to a TV near you.
Representative Eric Cantor of Virginia, majority leader of the Republican-controlled House of Representatives, said his caucus would pass another resolution calling for repeal when Congress convenes after the Fourth of July. The measure will go nowhere in the Senate, but even so, it would be a mistake for the GOP to count on a backlash as the race goes forward. The next federal unemployment report is due on July 6, and that’s likely to return the focus of the election to the issue upper-most in the minds of voters. Jobs, not health care, will be the key to the White House this year, which is why Romney’s advisers stop short of saying Obamacare will remain at center stage. “In the end, this is a good thing for us,” says a person close to Romney’s campaign of the Supreme Court’s action, who adds that the issue “will fade” over time. Thanks to Roberts, the issue of naysaying, road-blocking, Party of No Republicans — a theme near and dear to the Obama campaign — may fade a little bit too.
The Roberts Era
It’s hard to believe, but generations of Americans considered compromise an admirable quality. Schoolteachers taught their students about the Great Compromise that produced the Constitution and the Missouri Compromise that — for a time — held it together. Now the word connotes something bad. A leaky gasket has been “compromised,” and cheating spouses are caught in “compromising” positions. What Roberts managed to do with Obamacare vindicated the virtue of compromise in an era of Occupiers, Tea Partyers and litmus-testing special interests.
He didn’t seek some nonexistent middle ground halfway between irreconcilable poles. He didn’t listen to one side saying no and the other saying yes and write an opinion saying maybe, or blend black and white to make gray. He found a means of giving both sides just enough of what they wanted that he was able to avert a crisis. In the superheated conflict mill that is American politics these days, it’s good to have someone in a position of authority willing to try.
What’s more, Roberts found a way through that did not betray his own firmly held beliefs. He was conservative more than 30 years ago, when he clerked for the future Chief Justice William Rehnquist, and conservative when he served as a counsel in the Reagan White House. He was conservative when his name appeared in a leadership directory of the Federalist Society, and he is still conservative today. His cautious solution to the health care standoff, however, will make it much harder for his foes to paint his future decisions as the work of a lawless ideologue — no matter how conservative they are. He has managed to stand well above the viral, toxic cloud of partisan rancor that has settled over the capital, making him perhaps the healthiest figure, politically speaking, in government. After seven terms as Chief Justice, he finally put the Roberts in the Roberts court.
And ultimately, even though his compromise left the enormous mechanism of health care reform lumbering onward to horrify his friends on the right, Roberts brought the court down squarely on the side of one of the most basic conservative principles of all: that big decisions in the U.S. should be made not by judges or bureaucrats but by voters. They’ll have their say in November. “The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today,” he wrote at the end of his 59-page decision. “But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people …
“It is so ordered.”
— With reporting by Alex Altman, Michael Crowley, Michael Grunwald and Michael Scherer / Washington