In the wake of the Court’s unprecedented decision in NFIB v. Sebelius, led by Chief Justice Robert’s infamous vote to uphold the Affordable Care Act, there are several important new currents my book will now track. First, and most importantly, I will focus on the reported decision of Chief Justice Roberts to switch his vote in order to uphold the Affordable Care Act. Second, I will address the preemptive attacks on Roberts by supporters of the law, aimed at delegitimizing the Court, and with the goal of potentially influencing Roberts to change his vote. The attacks seems to have worked. Third, I will explore popular reactions after the Court’s decision. Opinion polling showed that the perception of the Court, especially among conservatives, dropped in light of the what may be the Chiefs politically-motivated switch. Finally, I map the possible road to repeal, as the haze of the Court’s opinions runs headlong into the 2012 presidential election, and a GOP attempt to overturn the ACA.
After the Court’s unexpected decision, this case, this law, this movement has become even more unprecedented.
The Switch In Time That Despaired Nine
During oral argument, Chief Justice Roberts was very critical of the government’s case. In fact, he directly attacked the Solicitor General’s Janus-like argument that the individual mandate was actually a tax, even though Congress chose to call it a penalty in order to avoid the unpopular political repercussions of imposing a tax increase. Roberts asked, quite pointedly, “You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?” To this, the flummoxed Solicitor General had no cogent response.
Yet, only three months later, Roberts accepted this very bizarre argument–a position that not a single judge adopted throughout the entire course of the litigation. Roberts, writing for Justices Ginsburg, Breyer, Sotomayor, and Kagan, took the position that even though Congress did not call the individual mandate a tax, it should be construed as a tax, and thus was “saved” as constitutional. Even more odd, though the Chief accepted the government’s third-string tax argument that no other judge accepted, he rejected the primary argument advanced by the government–and really the crux of the entire case–that the individual mandate exceeded Congress’s powers under the commerce clause. On this front, he agreed with Justices Scalia, Kennedy, Thomas, and Alito.
There were five votes that the mandate was constitutional as a tax, and five votes that it exceeded Congress’s powers to regulate interstate commerce. This tie went to the federal government, and the Affordable Care Act survived–however, as a silver lining of sorts, the Commerce-Clause-coalition vote will serve as a binding limit on the federal government’s power in future cases. Chief Justice Roberts, in the middle, cast the decisive vote to save President Obama’s signature law, writing “[I]t is only because we have a duty to construe a statute to save it, if fairly possible, that [the mandate] can be interpreted as a [constitutional] tax.” Save it, he did. Roberts’s opinion was unprecedented.
This change in the Chief’s position, from oral argument to the decision, may be explained by a switch in his vote. Immediately after the Court’s opinion was issued, leaks sprung from the Marble Palace at One First Street, reporting that Roberts changed his position at some point between the Court’s voting conference on March 30, 2012, and when the opinion was issued on June 28, 2012. I will probe these leaks, and analyze how the rumors stack up against what we know about the case, and how the various opinions were concluded.
Preemptive Attack on Roberts
In the months leading up to the Court’s opinion, there was a concerted preemptive attack against Chief Justice Roberts by supporters of the Affordable Care Act. Mere days after the Justices initially voted at its internal, closed-door conference, President Obama made an offhand comment during a press conference that seemingly doubted whether the Court had the power to strike down the Affordable Care Act, claiming that such an act would be unprecedented: “”Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” A shocking remark from a former Senior Lecturer in Constitutional Law. Later, Senator Patrick Leahy gave a speech on the Senate floor, directed right at Roberts: “I trust that he will be a chief justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch.” Pundits in newspapers, on cable news, and in the blogosphere constantly assailed the Chief to uphold the law. Even if these preemptive attacks on Roberts were not motivated by a leak, they represented a collective effort to put pressure on the Court to uphold the law.
Perhaps these critiques were simply a continuation of a long-standing campaign–stretching back to Bush v. Gore and through Citizens United–to delegitimize the Court as a political institution when decisions are issued on a 5-4 conservative-liberal split. Rather than relying solely on legal arguments about the Commerce Clause–which even Roberts ultimately rejected–supporters of the law waged an alternate campaign to influence the outcome. These attacks, which urged the Chief to vote in line with political considerations, rather than how he viewed the law, were overtly political. And they may have been successful.
Opinion of the Court
Indeed, it seems that the public, conservatives in particular, viewed this switch as political. In Roberts’s attempt to avoid further attacks from those who support the mandate, the Chief may have been willing to sacrifice himself among those who opposed the mandate. In a Pew Poll conducted two weeks after the decision, 51% of Republicans viewed the Court unfavorably, while only 38% view the Court favorably. Three months early, 56% of Republicans viewed the Court favorably, and only 25% had a negative opinion. This change is startling. In contrast, among Democrats, the favorability rating only jumped from 52% to 64%. In April, there were almost no partisan differences between how the Court was perceived. However in July, nearly twice as many Republicans as Democrats now view the Court unfavorably (51% v. 26%). Perhaps the Chief Justice made a stark miscalculation.
In his attempts to avoid the politicization of the Court, Roberts’s alleged switched position–which can only tendentiously be explained by fidelity to the law–reflects a political judgment of voting how he thinks would best reflect popular sentiments. This is a task outside the expertise of Judges, and one that historically, conservative jurists have rejected. Roberts’s attempt at this task, it seems, did not pan out. This switched vote, aimed at preserving the institution of the Court backfired, and may lead to the exact opposite result.
The Road to Repeal
Though the Affordable Care Act narrowly survived the Supreme Court, it may not survive the 2012 election. Governor Romney and leading Republicans, have targeted the individual mandate, and have pledged that it will be repealed immediately. I expect the ACA to be a prominent issue at the Republican National Convention, during Presidential debates, and in the run-up to the election. This section of my book will chronicle how prominent conservatives and libertarians reacted to the Court’s decision, and how this ire fuels the road to the White House. Further, I will channel the powerful sentiments that opponents of the Affordable Care Act feel towards the law, towards the Court, and towards the attempts to influence the Chief’s vote. Finally, I will explore several possible paths to repeal the law, including through reconciliation–a process generally reserved to modify the budgets, that is not subject to filibusters. Ironically, since the mandate is apparently a tax, reconciliation may be a direct path to repeal this law.