A new book on U.S. Supreme Court Chief Justice John Roberts suggests his vote saving Obamacare was motivated by something other than a desire to interpret the law correctly.
The chief justice angered conservatives by siding with liberals on the court, arguing the health-care law’s financial penalty compelling citizens to purchase insurance is constitutional because it could be regarded as a tax.
CNN published an excerpt of the book, “The Chief: The Life and Turbulent Times of Chief Justice John Roberts,” by CNN legal analyst Joan Biskupic.
“Perhaps Roberts’ move was born of a concern for the business of health care. Perhaps he had worries about his own legitimacy and legacy, intertwined with concerns about the legitimacy and legacy of the court. Perhaps his change of heart really arose from a sudden new understanding of congressional taxing power,” Biskupic wrote.
“However the chief would explain it – and he has not explained it beyond his written opinion – the case added a new dimension to a man who insisted that he always decided cases based on the law.”
Biskupic wrote that from a judicial standpoint, “his moves were not consistent, and his legal arguments were not entirely coherent.”
“But he brought people and their different interests together. His moves may have been good for the country at a time of division and a real crisis in health care, even as they engendered, in the years since, anger, confusion and distrust,” she said.
“Criticism on the right – from insiders and outsiders – was swift, including from the Wall Street Journal editorial page, which described the decision as ‘shot through with confusion.’”
The report notes that Robert’s decision was viewed as “a stunning validation of [Barack] Obama’s signature domestic achievement that transformed public perceptions of the chief justice.”
Obamacare later was gutted when Congress canceled the individual mandate. And the health-care law is under challenge in the courts as unconstitutional because the elimination of the mandate removed the premise of Roberts’ argument.
“Going forward, the chief justice would be viewed with skepticism by conservatives, despite also having taken the lead on limiting racial remedies and voting rights, helping roll back campaign finance regulations and voting for stronger Second Amendment gun rights,” Biskupic writes.
“Roberts’ moves behind the scenes were as extraordinary as his ruling. He changed course multiple times. He was part of the majority of justices who initially voted in a private conference to strike down the individual insurance mandate – the heart of the law – but he also voted to uphold an expansion of Medicaid for people near the poverty line.”
Shortly later, he reversed himself.
The Obamacare program’s heart was its requirement that all taxpayers buy health insurance or pay a penalty.
“After an unusual three full days of oral arguments in late March 2012 (a typical case gets one hour on one day), the nine justices gathered in a private conference room off the chief’s chambers to cast initial votes,” Biskupic reported. “They were alone, with no law clerks or administrative staff. The discussion focused on the individual insurance mandate and Congress’ power to regulate commerce. Roberts went first, as was the custom, laying out his views. He emphasized that he believed the Constitution’s commerce clause never was intended to cover inactivity, such as the refusal to buy insurance.
“After the chief, conservative Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas offered their views. Like Roberts, they thought Congress’ commerce authority did not cover an individual’s decision to forgo – rather than obtain – health insurance.”
In fact, American jurisprudence lacks other examples of courts ordering people to buy a specified product from a private company. Other mandates were accompanied with a privilege, such as requiring insurance to operate a vehicle.
The first vote predictably fell along political lines, with liberals siding with the liberal Obama.
“There was no sign on March 30, 2012, that any of the nine would defy the usual ideological and partisan alignment,” Biskupic wrote.
“That political division bothered Roberts, but he felt just as strongly about boundaries on the commerce power as the other four in the majority did.”
Congressional taxing power hadn’t even come up by then.
But Roberts “did not want the entire law to fall.”
“A pro-business conservative, he understood the importance of the insurance industry to U.S. businesses, and he was genuinely concerned about invalidating an entire law that had been approved through the democratic process to solve the intractable health care problem.”
Roberts then got to work, the book reports, first trying to convince others the provisions of the law could be severed.
Failing in that, he “began exploring whether, as the Obama administration had argued, the individual mandate could be upheld as a tax.”
“The chief justice then turned to Breyer and Kagan, the liberals most likely to work with him on contentious issues, to see if they could find common ground.”
There were various compromises, which the liberal minority embraced, while Justice Antonin Scalia, a conservative, was infuriated by Roberts’ decision to adopt a “fly-by-night briefing.”
Donald Trump, who then was several years from running for president, criticized the ruling.
“Wow, the Supreme Court passed @ObamaCare. I guess Justice Roberts wanted to be part of Georgetown society more than anyone knew,” Trump wrote.
“John Roberts arrived in Malta yesterday. Maybe we will get lucky and he will stay there.”