The Day After: The meaning of the Supreme Court’s surprising health care decision
By Rustin Silverstein, 202-822-1205, email@example.com
The Decision: The Chief Justice shocks the world
For all of the prognostications and punditry, no one predicted the precise outcome of the Supreme Court’s decision of the health care reform act — formally known as the Patient Protection and Affordable Care Act and referred to by its detractors and, more recently, the President’s reelection campaign, as “Obamacare.”
Surprisingly, it was the conservative Chief Justice, John Roberts — not the Court’s usual swing vote, Justice Anthony Kennedy — who joined the four more liberal justices in upholding the constitutionality of the act and the individual mandate at its core.
The mere survival of the law shocked both its supporters and opponents who assumed that it would be repealed following its hostile reception by the Court’s conservative wing during oral arguments in March.
Even more surprising, though, was how the Chief Justice reached his decision.
Like his conservative colleagues – Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito — Chief Justice Roberts concluded that the Constitution’s Commerce Clause did not grant Congress the authority to require that uninsured individuals purchase health insurance.
However, unlike his conservative colleagues, Roberts did not vote to strike down the law as unconstitutional. Rather, he held that the individual mandate and its penalty for noncompliance were constitutionally permissible exercises of Congress’ taxing authority.
While the Federal Government “does not have the power to order people to buy health insurance,” he wrote, “the Federal Government does have the power to impose a tax on those without health insurance.”
While Court observers and historians analyze the machinations behind yesterday’s dramatic ruling, it is already clear that Roberts’ Solomonic compromise — an articulation of a robust limit to federal authority while still upholding the law — will carry wide-ranging consequences.
Protecting the Court’s reputation… for now
A recent New York Times/CBS News poll found that just 44 percent of Americans approve of the job the Supreme Court is doing. That’s down from 66 percent in the late 1980s. Furthermore, three-quarters say the justices’ decisions are sometimes influenced by their personal or political views.
By declining to strike down the most sweeping piece of social welfare legislation in a generation, Chief Justice Roberts may have succeeded in momentarily quieting criticism of the Court as a partisan institution seeking political gain in the wake of the Citizens United decision which gave rise to the well-funded and largely Republican-leaning “Super PACs.”
Of course, any goodwill the Chief Justice may have earned from liberals will likely dissipate once the next politically divisive issue — be it affirmative action, gay marriage, or abortion — comes before the Court.
The Chief Justice’s poisoned chalice
Perhaps most significantly, while liberals may have cheered Roberts yesterday, his decision may ultimately prove to be one of the gravest threats to their expansive vision of government’s role.
The decision revealed the willingness of a majority of five conservative Justices — including Roberts — to roll back decades of judicial deference to Congressional expansion of federal powers. This solid majority appears ready to more closely scrutinize and reject further expansions.
Roberts’ decision then may ultimately serve as a warning to future Presidents and Congresses: legislation must be grounded in enumerated constitutional powers or risk repeal by the Court.
Yesterday’s ruling undoubtedly disabused onlookers of the notion that the Court will easily fit into a political box. However, it did underscore not only the importance of elections but also the enduring impact of judicial nominees on a President’s legacy and the direction of the country.
While November’s election may not decide the immediate fate of Obamacare, it could inspire a dramatic reshaping of the relationship between the Federal Government and its citizens. President Obama or a President Romney may appoint the future Supreme Court Justices who either solidify the Court’s conservative bloc or begin to turn back the tide.
Rustin Silverstein is the managing director of the legal crisis communications practice at Hamilton Place Strategies. A graduate of Harvard Law School, Rustin practiced law and worked as a management consultant prior to joining HPS. Earlier in his career, he served as a congressional press secretary and a television news producer.