Perhaps, like me, you were surprised that the Supreme Court upheld the constitutionality of the individual mandate. Perhaps you were even more shocked to learn that the opinion was written by Justice Roberts. But the greatest stunner of all was the fundamentally conservative argument the Chief Justice crafted to support Obama's signature legislative achievement.
Roberts' opinion was an ironic and strangely beautiful triumph of the right's vision for the judicial branch. Clearly Justice Roberts is willing to take conservative jurisprudence seriously even when it frustrates conservative political priorities (though oddly not on Citizens United). Along the way, perhaps he has inspired liberals to appreciate the value of judicial restraint.
What's so conservative about this decision?
1) Rejecting the bottomless use of the Commerce Clause
Roberts found that the mandate was supportable under Congress' taxing authority, but not under the Commerce Clause. Since Roosevelt, the Commerce Clause has been used as Congress' default authority to do almost anything. That's what Rep. Stark of California meant when he told a town hall meeting that Congress can pretty much do whatever it wants. Liberals were counting on the Commerce Clause as the primary grounds to uphold the mandate.
Roberts' opinion on the Commerce Clause pretty well reflects the Court's future bent. The Commerce Clause can no longer be regarded as Congress' excuse to do whatever it wants and that marks a major conservative achievement.
2) Embracing judicial restraint
Justice Roberts in his opinion provided a fine definition of judicial restraint:
"We do not consider whether the Act embodies sound policies. That judgment is entrusted to the nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions."
And, even more pointedly:
"It is not our job to protect the people from the consequences of their political choices."
Hallelujah and Amen. The ACA may be, and in my opinion absolutely is, one of the sloppiest pieces of legislation to emerge from Congress in the modern era, but since when do conservatives rely on the courts to rewrite bad laws?
3) Protecting States against federal funding threats
For decades the federal government has pushed states into policies they don't want by using money as either a carrot or a stick. Roberts' opinion striking down some Medicaid provisions of the ACA limits Congress' ability to use money as leverage. Congress can only use conditional funding as a policy lever "when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds."
How would this reasoning be applied to No Child Left Behind, for example? I don't think that's clear yet, but the Roberts decision is a significant step toward greater restraint on federal power to interfere in state policy making.
In the moment, this ruling may be a disappointment. However, if we are serious about having the courts exercise greater respect for the separation of powers, then we have to embrace that philosophy even when it's politically inconvenient. Justice Roberts' decision is a huge win for conservative jurisprudence even if it's a painful political blow. In the long run we may be very happy about this decision.
Well, read the dissenting opinions in this case. Kennedy, Scalia, Thomas, and Alito went way beyond judicial restraint in advocating for overturning the whole thing. So I hope that even conservatives woudl agree that those four are dangerous.
Wondering 1) Is Roberts losing patience with those guys, and 2) How on Earth did Kennedy sign on to that bizarre, raving dissent?