In the end, by upholding the health care law, Chief Justice John Roberts acted like an umpire. That was the image he offered the nation at his confirmation hearing in 2005. His job as judge, he said, was to “call balls and strikes, and not to pitch or bat.” On Thursday he did that.
There were many winners in the ruling — including President Barack Obama, Congress, the Democratic Party and millions of people who rely on the new law for health care. But there was also one more: the idea that the Supreme Court can be more than a political body.
It could have come out very differently. On the eve of the ruling, a majority of constitutional-law scholars polled by Bloomberg predicted that the law would be struck down. And in fact, four of the court’s conservative Justices did vote to strike it down — including Anthony Kennedy, who is usually the court’s swing vote.
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The court’s conservative bloc had the votes to crush the law and deliver an enormous political defeat to Obama in the midst of a close and tough battle for re-election. But Roberts held back — he did not do the political thing.
For more than a decade, many court watchers had lost faith that the Supreme Court could rise above partisan politics. In Bush v. Gore in 2001, the court split on ideological lines, with the five conservative Justices voting to stop the vote counting in Florida and hand the presidential election to the Republican candidate, George W. Bush. In Citizens United in 2010, the court allowed corporate money to flood into politics — a boon to Republican candidates — by a 5–4 vote, again on ideological lines.
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It was beginning to look like the court was nothing more than a third political branch, one that would use its extraordinary power to declare laws unconstitutional to favor the party it agreed with. The despair that many court watchers were feeling was captured in a recent quote by Yale law professor Akhil Amar. He said if the court struck the health care law down by a 5–4 vote, it would be “disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party and party loyalty.”
Thursday’s ruling gives hope that the court is capable of acting in ways that do not advance the Justices’ personal political agendas. And it scrambles the whole debate. When Michele Bachmann and other critics took to the airwaves, they could not blame “liberal judges” because the opinion was written by Roberts, a Bush appointee with strong conservative credentials.
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There are several ways of thinking about why the court acted as it did. It could be that the Justices sincerely interpreted the law as they saw it. Roberts may have voted with the court’s liberals because he simply believed that Congress had the constitutional power to pass the Affordable Care Act.
It could be that Roberts held back out of concern about the enormous impact that striking the law down would have had. It is one thing to say that a Christmas crèche must be removed from a town square and quite another to strike down a law that provides health care to millions of people.
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There is another possibility: Roberts may have been responding to the mounting criticism of the Roberts court. The Citizens United ruling was widely attacked as an overreach — the court grasping to decide an issue it did not need to in a way that deeply damaged U.S. democracy. A recent poll found that 62% of Americans oppose the ruling. And the Supreme Court itself is held in low esteem. Just 44% of Americans say they approve of it. Roberts may not have wanted to add to the criticism by issuing another hugely sweeping, highly controversial ruling so soon after Citizens United.
So yes, there were many winners on Thursday, but the biggest winner of all was the Supreme Court. By not dividing along ideological lines or acting in a way that would help the political party that most of the Justices are aligned with, the Justices bolstered the idea that the court is in fact a court of law and not a political machine.
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