A stitch in time...Part I

Posted at: 07/03/2012 7:11 AM
By: Dr. Timothy Kneeland | WHEC.com

A stitch in time...Part I

In this two-part blog I will lay out the context for the decision and then address the implications of the historic decision on health care announced last Thursday (6/28/2012) in NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. (2012).

As I sat in the Library of Congress last Thursday I began to hear the archivists buzzing about the decision, “it was 5-4 in favor of Obama” they said to one another with a mixture of shock and relief.   I sat there, longer keep focused on Jack Kemp whose congressional papers were on cart beside me, and instead tried to imagine who the deciding vote was.  The two most likely candidates were Anthony Kennedy, the so-called “swing vote” on the Court, or Chief Justice John Roberts who had a reputation for building consensus prior to coming to the Supreme Court.   It was, of course, John Roberts who made the decision—a decision which CBS is reporting was a last minute decision-- to join the liberal wing of the Supreme Court (Ginsburg, Breyer, Sotomayor and Kagan) to uphold the key provision of the Affordable Care Act, the individual insurance mandate.  

Yet Roberts did so NOT on the grounds argued by advocates for the bill (i.e. that the Congress has authority to mandate health care under the Commerce Clause and or the General Welfare Clause).  Roberts found that the Commerce argument was an overreach of congressional authority stating that this was not regulating commerce but compelling it and that it would open “a new and vast domain to congressional authority.”  Rather, the Chief Justice construed that the “penalty” for not participating in the mandate is a “tax.”     He therefore found that the Affordable Care Act was constitutional and thereby saved the heart and soul of the law –which the conservatives on the Court did not believe to be severable.

Conservatives suggested that Roberts was a traitor, and liberals who had loathed the Chief Justice before now felt his pronouncement made him eminently reasonable.   He is in fact reasonable in the sense of the word that he is a moderate to conservative thinker with a history of seeking consensus, always attempting when possible to build a majority.   He is also reasonable in his deference to the elected branches of government.  The Court for many years avoided “Political questions”  but that has been largely moot in since the mid 20th century.  Roberts seems to prefer the more modest aspirations of the past as revealed in his comment regarding political matters, that the Court has a “general reticence to invalidate the acts of the Nation’s elected leaders” adding that they  “can be thrown out of office if the people disagree with them.”  He went on to remind conservatives that it is not the job of the Court to “protect the people from the consequences of their political choices.”

Roberts may also have felt the weight of being Chief Justice.  As an institution the Court has always had a great deal of residual respect from the public, at least until the Bush v Gore decision.  The Chief Justice may have wanted to prevent a showdown with President Obama and the Democrats in Congress as well as the inevitable bad press that would have come from it.  The politics of personal destruction might have been unleashed on the members of the Court!

This attempt to save the Court has precedent in history.  A few (overly simplified) examples come to mind: John Marshall in Marbury v Madison (1803) found a neat solution to a political problem involving Thomas Jefferson’s desire to keep Federalists such as William Marbury from receiving their appointments to the federal bench.   Marshall determined that the Court had the right to review laws for their constitutionality (judicial review) but then found the law which would have granted Mr. Marbury and his 41 other colleagues positions in the government was flawed and he could not therefore force Jefferson to appoint them.  He saved the Court from a political battle and created the precedent of judicial review.    

In the twentieth century, President Franklin Roosevelt was frustrated when his New Deal legislation (such as the National Industrial Recovery Act and Agricultural Adjustment Act) was struck down as unconstitutional by the Supreme Court in votes that were often 5-4.   After winning reelection by a wide margin he asked congress to pass a law that would have increased the number of Supreme Court Justices on the bench.  The idea, as everyone at that time knew, was to “pack” the Court with yes men so that his legislation could go forward.  He was especially anxious as the Court had yet to decide on the Social Security Act and the National Labor Relations Act which were centerpieces of his creation of the federal social safety net.   As legislation to create new positions on the Court slowly moved in the Senate, one conservative justice, Owen Roberts, switched his vote in key New Deal cases thus upholding the Social Security Act and other New Deal legislation.  This “switch in time saved nine” claimed the newspapers of the day and was seen as Robert’s attempt to save the Court which he did, as the Senate decided against the proposal to add new justices.  The Court was saved from intrusion by the political branches, and eventually remade by the eight appointments FDR made during his presidency.

Thus, it was a reasonable temperament and the role of Chief Justice that provides us the necessary insight into John Robert’s decision.   However, I guarantee that historians will long debate Roberts’ insight, motives, and thinking about Health Care Reform and no doubt, someone from the New York Times or Washington Post will have a book out within a year thus framing the issue from a journalist’s viewpoint.

In my next blog I will talk about the implications of the decision.

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