This afternoon, a few hours after certiorari was granted in King v. Burwell, I queried when the full court press on the Chief would begin. That didn’t take long at all.
From the WSJ:
It’s hard to predict how the High Court will rule, as we learned in the ObamaCare case on the individual mandate. Chief Justice John Roberts saved the day for Mr. Obama by ruling that the mandate was justified because it was really a tax. Never mind that in writing the law, Democrats had repeatedly declared that it wasn’t a tax.
But the current Court has shown growing impatience for this Administration’s abuses of executive authority. “It is not our job to protect the people from the consequences of their political choices,” the Chief Justice famously wrote in the first ObamaCare case. We are about to find out if he thinks his job is to save the President from the consequences of willfully rewriting black-letter law.
From Noah Feldman in Bloomberg:
The $64,000 question is: What about Chief Justice John Roberts? In 2012, Roberts split the baby. He voted to uphold the individual mandate and thus avoided banner headlines screaming that the Roberts court had struck down Obamacare. At the same time, Roberts blocked the element of Obamacare that would have essentially forced states to expand Medicaid. This part of the decision drastically reduced the scope of coverage under the law and therefore the law’s impact.
What will Roberts do now? He took substantial heat from conservative critics who were astonished and horrified to see the lifetime conservative betray the cause at its moment of potential judicial triumph. One possible interruption is that, scarred by this experience, Roberts would now go along with the conservative tide. The continuing unpopularity of Obamacare in opinion polls combined with the obvious weakness of President Obama after the midterm elections would provide some support for this possibility.
The other possibility is that Roberts will not deviate from his judicial restraint centrism. To strike down Obamacare now, having upheld it before, might look like opportunism or wishy-washy-ness. Given how weak the law increasingly appears, it would be a high price for Roberts to pay before the judgment of history if he now struck it down. Indeed, such a decision would vitiate his earlier restraints.
What seems almost certain is that the other conservative justices have decided to put Roberts to the test. They will not let him get away without standing up and being counted on Obamacare once again. They have nothing to lose in any case by taking the gamble. For better or worse, the rest of us will be along for the ride.
It’s hard to predict right now what the Supreme Court might do, but it’s worth remembering that the whole law would have been struck down two years ago if Chief Justice John Roberts didn’t find a way to save it.
Will Chief Justice Roberts rewrite ObamaCare to keep it alive again? Or is he irritated by the political pressures that forced him into making that decision last time, and looking to restore his judicial reputation?
Jonathan Chait at the New Yorker:
Indeed, one thing that both sides agree on about NFIB v. Sebelius is that it was a political ruling rather than a legal one: John Roberts ultimately decided that destroying Obamacare would blow up his public credibility in an election year, and decided to let the law stand. That is, both sides agree that the Court’s actions need to be understood in political terms and not merely as a straightforward legal interpretation.
And the politics can be understood in two ways. On the one hand, if Roberts decided not to blow up Obamacare two years ago, why would he change his mind now? On the other hand, this lawsuit gives him another chance to blow a major hole in the law without destroying it completely. In that way, it may fit with his apparent goal of advancing the conservative movement’s legal goals without instigating a massive public backlash.
Would Roberts, the court’s swing vote in its first landmark ruling on Obamacare, join a decision gutting it just two-and-a-half years later? It’s hard to see, but there’s enough of a chance to worry supporters of the law.
Linda Greenhouse and Jeff Toobin, I’m sure, are thinking this also. All eyes are on the Chief Justice.