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Ray Brescia

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Game of Robes: Why Conservatives May Ultimately Praise the Roberts Switch on Health Care Reform

Posted: 07/06/2012 10:00 am

Shifting alliances, unclear loyalties, palace intrigue, broken vows, poisonous edicts and bitter rivals: just when you think you've got it all figured out, someone switches sides, enemy becomes ally, villain becomes hero and victory is grabbed from the clutches of defeat. That's the vertiginous feeling one gets when watching the HBO adaptation of George R.R. Martin's Game of Thrones. It was also the feeling that gripped the nation last week as the Supreme Court upheld the key components of President Obama's signature health care legislation.

Of course, the critical vote did not come from where many expected: the sometimes moderate Anthony Kennedy. No, the square-jawed, blue-eyed, conservative-as-they-come Chief Justice, John Roberts, delivered the deciding vote that preserved the health care program largely intact. A CBS News investigative report provides some of the details of the switch, complete with apparent arm-twisting and the dissenters' sense of betrayal. Conservatives have lamented this betrayal. But what they should know is that what Roberts may be doing is lining up an even grander gesture, a double-switch that will defy expectations yet again. Indeed, the health care ruling may just give Roberts an opening to both preserve a legacy of moderation while issuing ruling after ruling in ways conservatives will love.

If court watchers thought this term was important, it's the next term that may offer the Chief Justice a chance to shift alliances once more, and come back to the conservative fold. He can serve as the deciding vote on issues dear to the right, and in ways that will please them greatly. Already before the court is the question of the constitutionality of race-based affirmative action programs in higher education. A number of cases involving the viability of the Voting Rights Act could also appear on the court's docket in the fall. A third issue, the constitutionality of the Defense of Marriage Act, is likely to be heard as well. It is a veritable murderers' row of conservative pet peeves. Changes in court personnel over the last decade make even recent rulings on issues like affirmative action and the Voting Rights Act up for grabs. And conservatives would love to protect the federal firewall against the states legalizing gay marriage.

But with the Chief Justice's switch on health care, the Roberts court did not have to wait until next term to start issuing rulings on important constitutional questions. One of the other signature decisions of Roberts's tenure as Chief Justice is the Citizens United case, the decision that has opened the floodgates of independent money into national and state elections. While awaiting the release of the health care ruling, the Supreme Court overturned a decision of the Montana Supreme Court that would have afforded the justices the opportunity to revisit the Citizens United decision, now that it is apparent the corrupting effect the case is having on electoral politics. But the court did not agree to hear the case in its normal fashion. No, in a rare move, it reached out and overturned the case -- without oral agument, and through a 5-4, one-paragraph decision, with Roberts and the other four conservative justices in the majority.

Moreover, even the health care ruling is a Trojan Horse in at least one way. The narrow view of the Commerce Clause espoused by the Chief Justice and the four dissenters -- that the commerce clause cannot regulate inactivity -- signals that there is likely a new majority view that could crystallize in future opinions. Emboldened by this take on the Commerce Clause, conservative legal organizations could push to present a range of health and safety regulations before the court. It is a veritable full employment plan for lawyers promoting conservative causes, if only an unwanted legal or regulatory protection can be construed as imposing a penalty for inactivity as opposed to activity.

Ultimately, conservatives may not need to lament for too long -- and liberals may not want to celebrate too much -- the Supreme Court's health care ruling.

In Game of Thrones, one never knows whom to trust, as rivals can become friends and friends enemies in the blink of an eye, and fortunes can change just as quickly. After a bitter defeat, a challenger to the coveted Iron Throne of the Seven Kingdoms, Stanis Baratheon, is consoled by his witch advisor: buck up, you may have lost a battle, but you will win the war. The capital Roberts has built up with this decision may mean he gets a pass to issue extreme rulings on a number of key constitutional questions. As they are fond of saying in Martin's Winterfell: "Winter is coming."

 

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