Let’s hope U.S. Supreme Court Chief Justice John Roberts has an unlisted number.
By providing the swing vote and writing the majority opinion in the Supreme Court decision upholding the bulk of the Affordable Care Act—President Barack Obama’s health care reform law—the chief justice became, for the moment, the most polarizing figure in American public life.
Conservatives who had come to depend upon the Supreme Court as a bulwark for their interests saw Roberts’ vote as a betrayal. (I know theological terminology can be used loosely on the Web, but I’m reasonably certain that when a conservative blogger refers to Roberts as “Judas,” he doesn’t mean it as a compliment.)
Liberals, on the other hand, saw the decision—and Roberts’ role in it—as a vindication of the role of the nation’s highest court as an impartial interpreter of fundamental law, rather than yet another partisan arm of government.
The fact is that the ruling had something for everyone to like—and something for everyone to dislike.
It upheld the bulk of the health care reform law, but on narrow grounds.
It rejected the argument that the government could require individuals to purchase health insurance by the authority granted it under the Commerce Clause of the Constitution. Instead, the court ruled that the government could compel individuals who don’t have health insurance to pay penalties to the federal government under the government’s power to tax.
And the ruling crimped the federal government’s ability to withhold Medicaid funding from states that choose not to expand Medicaid.
Some of this is a bit strange—and even a bit troubling.
If Congress can’t regulate health care under the Commerce Clause, I’m not quite sure how Congress regulates any interstate commerce—and providing that regulation is one of the primary reasons the Founders dispensed with the Articles of Confederation and adopted the Constitution.
That said, what the ruling did was take the debate, for the moment, about health care reform out of the courts and put it back where it belongs—in the realms of politics and public policy.
Both Obama and Mitt Romney said that figuring out how to provide affordable health care coverage was a decision the American people—and their elected officials—needed to make.
Obama said he welcomed opportunities to improve the law. Romney said he wanted to overthrow the law and find an entirely different way to provide health care coverage.
That might be the court’s contribution to the American dialogue.
The debate over health care reform three years ago was hardly an edifying exercise. One can hope that both Democrats and Republicans will react to this historic challenge more honorably this time.
That said, it’s likely the Supreme Court will have to revisit this issue again.
In addition to Scalia’s scathing dissent, which the other three conservative justices agreed with, Justice Ruth Bader Ginsburg wrote a concurring opinion for the four liberal justices. It said they believed the government had the authority to impose the mandate under the Commerce Clause, but that they were willing to accept victory under the taxing power.
In other words, there were four justices who believed the federal government had no authority to regulate health care, four who believed the government had sweeping powers to do so, and one who thought the government had only narrow powers to do so.
Chief Justice John Roberts. Perhaps it would be a good idea for him to leave the phone off the hook for the next few decades.•
• Krull directs Franklin College’s Pulliam School of Journalism, hosts the weekly news program “No Limits” on WFYI-FM 90.1, and is executive director of The Statehouse File. Send comments on this column to firstname.lastname@example.org.