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Yesterday was a good day for the law, people without healthcare, liberalism, the Tea Party, and President Obama, in no particular order. I was surprised to see the PPACA upheld. After the length of the oral arguments devoted to the PPACA, I thought there was one chance in three or four that Justice Kennedy would cross over to affirm its constitutionality, and no real chance that Chief Justice Roberts would if he did not. The other votes all seemed certain. But a funny thing happened on the way to what seemed predestined -- the intellectual honesty of Chief Justice John Roberts. With respect and admiration, Mr. Chief Justice, this blog's for you.
Yesterday's decision was one of the three most dramatic in the time I've been a lawyer. In 1992, the popular wisdom was that the Supreme Court was poised to reverse Roe v. Wade, in light of decisions from prior terms steadily chipping away at the federal constitutional right to abortion. But Justices Souter and O'Connor, both Republican appointees, peeled Justice Kennedy from what would have been a Chief Justice Rehnquist-led majority. Kennedy intoned that "liberty finds no refuge in a jurisprudence of doubt," and a conservative counterthrust in the law was dissipated. Though from 1986 to 1992 it was imperiled, no one now seriously questions Roe, even as recent polling suggests that public ardor for the right to choose may have faded a bit.
The next (and most) dramatic Supreme Court moment of our lives was Bush v. Gore, as the Supreme Court reversed the Florida Supreme Court, and stopped the counting of votes that transfixed a nation staring into glass-walled conference rooms filled with lawyers and hanging chads. In that case, all nine Justices voted consistent with their perceived political affiliations: Justices Rehnquist, O'Connor, Scalia, Thomas, and Kennedy were a conservative Republican majority. The two Clinton appointees, Justices Breyer and Ginsburg, dissented, joined by Justices Stevens and Souter, who would wait to retire so that Democrat Barack Obama could pick their successors.
The drama yesterday lay in the tension between our ideas of law and politics. Would a partisan cross the red/blue line, as in Casey, and let the PPACA stand? Would all nine Supremes vote with the party that appointed them, making the case a 5-4 striking down of the law? Or would the case be, as some analysts suggested before oral argument, a 6-3 or 7-2 continuation of the Court's broad construction of the Commerce Clause, with Justice Kennedy joined by the Chief, and perhaps even Justice Scalia? While analysts widely believed before argument that the constitutionality of the PPACA was not a close question (consider that Charles Fried, Reagan's Solicitor General, and archconservative DC Circuit judge Laurence Silberman, the main source for Scalia clerks, found it constitutional), by argument it appeared otherwise. The Court's decision to set the matter for such lengthy argument and the skepticism of the Court's conservative wing at argument, seemed to reflect the party politics stakes, and suggested a chance to revisit the polarization of Bush v. Gore, the most nakedly "political" decision, whatever meaning you ascribe to that word, of our lifetimes.
Instead, thanks to the Chief, we would revisit the June 1992 shock that was Casey. Professor Paul Campos wrote an excellent piece suggesting that the references in the Scalia-Thomas-Alito-Kennedy dissent to "the Dissent" of Justice Ginsburg are subtle digs meant to indicate that Chief Justice Roberts deserted what would have been a majority late in the consideration of this matter. Linda Greenhouse in the New York Times, as savvy a court-watcher as we have, stated that a seemingly coordinated raft of conservatives suddenly opining around Memorial Day that Chief Justice Roberts was under pressure from liberals to uphold the Act implied to her at that time a leak or suspicion from inside the Court itself that the Chief might defect.
And so he did, in a fashion impressive to me on two levels. First, Chief Justice Roberts was the only one of nine members of the Court to part from his political party's orthodoxy on the issues presented. The Obama DOJ presented the PPACA as a valid exercise of the Commerce Power and alternatively as valid under the taxing power. All four Democrats agreed with both premises, while the other four Republicans disagreed, in a sort of Bush v. Gore redux. While I don't agree with his parsing of the Commerce Clause, and prefer Justice Ginsburg's reading of it, Chief Justice Roberts took the primary legislative achievement of a President from an opposing political party, one he had set for an inordinate amount of oral argument, in a seeming bid at legitimizing whatever outcome followed… and got something right on principle that was politically inexpedient. Yes, as the DOJ maintained, the penalty collected by the IRS can be viewed as a tax. This sounds pretty obvious when you think about it, and the dissent's rejoinders that it is not are fairly feeble privileging of labels over substance. Commerce Clause aside, the Chief got that issue right, in my view.
A second laudable quality I see in the Chief's opinion is that he called a strike pitched by President Obama, Majority Leader Reid, and Speaker Pelosi. Having famously argued for judicial modesty in deeming himself a mere umpire in his Senate confirmation hearing, Chief Justice Roberts then led the Court to revamp First Amendment law in Citizens United, and in doing so not only overruled recent precedent, but very notably reached issues not originally framed by the parties for decision -- the antithesis of the reductive metaphor of the umpire as reactive and objective. But upholding the PPACA is absolutely an act of modesty. I saw some whining about Roberts quoting some silly old cases about saving statutes when you can. Silly old cases, as it turns out, from Justices Holmes and Story. As it turns out, when suggesting that the Court has a "plain duty to adopt that" construction of a law that saves its constitutionality, that Holmes guy was onto something, as was that Story guy a century before him. This is the lineage of Roberts, and yesterday it served him well. He held his nose, repeating that the merits of the law aren't up to him (or by implication his robed conservative brethren), and deferred to policy choices made by elected officials. He refrained from embracing the full-throated judicial activism decried by the conservative movement of the 1980s in which he grew up -- but which was recently embraced in philosophically empty, instrumentalist screeds by George Will and others, who see the Roberts Court as a path around democratic choices with which they disagree. Roberts was intellectually consistent here, and that is the stuff of which judging is made. While we have not seen this kind of surprise from John Roberts before, you have to recognize and honor it when you do.
Having said all that, law isn't lit-crit. It's choices that make differences for people either way. And right now, there will be more poor people covered under Medicaid expansion. Those covered by their parents' insurance remain so. Preexisting condition discrimination lost yesterday. And the Overton window just moved, big time. While most Democrats support the Act, and a nontrivial minority of liberals do not, the reality of the Act surviving creates not only the possibility of the Act's own improvement and revision, but also creates a culture in which we have finally committed to the broad-based availability of health care, sought by Harry Truman, Teddy Kennedy, Mike Dukakis, Bill and Hillary Clinton, and so many others.
That is the victory of liberalism here. That broad-based health care is the win, not the how of the Act. That is true progress. And naysayers on both sides of the Act (baggers of Tea or fire) may be surprised to see that a Gallup snap poll suggests that Americans are 46/46 on whether the Supreme Court correctly decided the case. That the country, which on balance was never in favor of this Act (its approve/disapprove parked around 39/51 or so), now views the decision legitimizing it as a true split suggests that we are moving past this debate: Dems/Obama/blue people accept it as part of their policy set, and Reps/Tea Party/red people hate it. The Overton window has moved. We are now split on party affiliation, the HCR decision, and gay marriage. Welcome to 2012, not the same as 1992 or 2002.
With that even split in our political culture, I say yesterday's big winners are both Barack Obama and the Tea Party. Before seeing the Gallup snap poll, and seeing Obama's daily tracking numbers unaffected or up, I wondered if 2010 might break out again. I think upon reflection it will not. The President wins because he won -- his signature legislation stands. But he also won because he caused this argument to occur before the election, anticipating a run against the spokesman least able to explain why Obamacare is wrong -- the proponent of RomneyCare. Mitt Romney will explain why no one should re-elect a President whose signature legislative achievement is, um, pretty much the same as his signature legislative achievement. This will be interesting to watch, and already is (as Rick Santorum trashed yesterday's opinion by trashing RomneyCare as a failure).
This underscores why the Tea Party won yesterday. Many conservative pundits sought solace in the meme that Roberts' decision would inflame the right that turned out so well in 2010, and that is surely true. The decision adroitly frames the PPACA as imposing taxes (which, in honesty, is a fair way to look at it), and that will fuel turnout and rhetoric on the right. The angriest element of the right got angrier yesterday, not only from losing the case, but from the betrayal of one of their own, a movement conservative gifted to them by George W. Bush, who had authored Citizens United, scaled back affirmative action, and who was poised to deliver a blow to the legislation they most dearly hate. The success of Obama is the success of the Tea Party, and with the overreach it brings (see DE, AK, CO, NV 2010 Senate elections; see also 2012 Presidential primaries), the success of the Tea Party will continue to be the success of Obama, the adult voice of reason running against anger and overreaction. Look for a Republican House, a jump ball Senate, and the same voters sending President Obama back to check downballot excesses.
Chief Justice John Roberts remains a movement conservative who votes with Justice Alito 96% of the time. But he is also a Chief Justice who honored his stated philosophy of judicial modesty, and his heritage of deference to elected officials making laws and courts saving them, back to Holmes and Story. (There was the same type of honesty in Justices Breyer and Kagan voting that the Medicaid expansion was an unconstitutional commandeering of state resources, I should add.) This vision of judging represents an attempt to adhere to a rule of law over a rule of politics. In honoring that ideal yesterday, while arm-waving to the voters about their right to make choices (and by implication undo yesterday's ruling at the ballot), the Chief was true to principle. If he wanted to avoid another Bush v. Gore, with nine obviously politically contingent votes, good for him. He did. The country needs more of that thinking, not less. Yesterday's decision respects that the election of 2008 mattered, and that the election of 2012 will too. In making that point to partisans of both sides, Chief Justice Roberts reaffirmed what democracy is, and reaffirmed all the messy possibilities in our politics for moving forward or back again. It is, as he suggested, now up to us.