by Curt Levey
#1: The charge that the Roberts Court is a right-of-center
court has been proven wrong in dramatic fashion.
It’s not just the ObamaCare decision that can be
characterized as liberal. In this term alone, the Court invalidated most of the
Arizona immigration law, declared mandatory life-without-parole sentences for
juveniles unconstitutional, invalidated FCC fines for fleeting expletives and
brief nudity, and broadened protections for criminal defendants in cases
involving both search and seizure and ineffective assistance of counsel.
#2: Five is not enough.
It’s no fluke that one or more of the five center-right
Justices deeply disappointed conservatives three times in just the last few
days. It’s clear that five center-right Justices on the Court will never be
enough to substantially advance the law in a conservative direction. Unlike the
Democratic appointees on the Court, who can be counted on to vote the
progressive way when the stakes are high, Republican appointees – no matter how
carefully selected – cannot be counted on to consistently uphold conservative
principles.
#3: Though the immediate impact of the decision was a
stunning defeat for conservatives, the larger cause of constitutional
federalism was advanced.
As legal precedent, the ObamaCare decision strengthens the
Constitution’s protection of state sovereignty and its limits on Congress’s
power under the Commerce, Spending, and Necessary & Proper clauses. Quin
Hillyer concludes that:
“[S]even of nine justices … finding that the Medicaid
provision amounts to an unconstitutional coercion of the states … combined with
the majority in favor of limiting the reach of the Commerce Clause, effectively
means that the left lost far more than it won in terms of lasting legal
precedent."
Justice Ginsburg charged that “The Chief Justice’s crabbed reading
of the Commerce Clause harks back to the era in which the Court routinely
thwarted Congress’ efforts to regulate the national economy.” Let’s hope so. In
any case, now that it “will be hard … to criticize the John Roberts Supreme
Court … as partisan” – in the words of liberal Supreme Court litigator and
observer Tom Goldstein – it will also be hard to criticize the newly limited
reading of the Commerce Clause as out of the mainstream.
#4: Obama and company’s attempt to cow the Supreme Court
succeeded.
Harvard Law School Professor Noah Feldman writes that:
"Roberts knew the consequences of striking down the
individual mandate: He would have been attacked by the president and the news
media as the chief of the most activist conservative court since the
1930s."
One way or another, the pressure apparently got to Roberts.
Professor Lawrence Solum of Georgetown Law expresses the conclusion of many
that language in the four-Justice dissent “is highly suggestive of a majority
opinion. … This suggests that Justice Roberts switched his vote.”
This problem is nothing new. Moderately conservative
appointees to the Court often drift to the left over time. I chalk it up to
them caring too much about their reviews in the Washington Post.
#5: The bullet ObamaCare dodged was more deadly than
imagined.
The conventional wisdom was that if the individual mandate
were declared unconstitutional, only the mandate and two related provisions
would be struck down, saving the rest of the statute. Instead, each of the four
Justices who found the mandate unconstitutional voted to strike down the entire
statute. But for Roberts’s surprise vote, that would have been the holding of
the Court, exceeding the hopes of ObamaCare’s opponents.
#6: Roberts’s opinion was judicial activism at its worst.
Those who say the Chief Justice saved the Court from being
branded a bunch of right wing activists are at least half wrong. Roberts’
logical contortions – going so far as to conclude that the individual mandate
was simultaneously a tax and not a tax – invite charges of activism.
Even famed liberal law professor Alan Dershowitz concedes
that, in order to achieve “a political compromise," "Justice Roberts
went out of his way to characterize the penalty for not buying insurance as a
tax increase." Such results-oriented judging, no matter its motive, is the
hallmark of judicial activism.
I almost wish President Bush had appointed Barack Obama to
the Supreme Court instead of Justice Roberts. That would have given us a
majority of five Justices willing to emphatically say that the mandate is not a
tax
#7: Chief Justice Roberts will likely be best remembered for
disappointing conservatives in the most important case of his judicial career.
Whether fair or unfair, the sentiments of many conservatives
are summed up by the editors of National Review: "If the law has been
rendered less constitutionally obnoxious, the Court has rendered itself more
so. Chief Justice Roberts cannot justly take pride in this legacy."
Michael Walsh compares the Chief Justice’s surprise vote to Justice Owen
Roberts’ famous switch, under pressure from President Franklin Roosevelt, that
ushered in the era of virtually limitless federal power that continues to this
day. There can be no more damning comparison.
On the flipside, Roberts may enjoy the accolades he is
getting from more progressive circles. But rest assured– those will last only
until the next big Supreme Court decision that offends liberal sensitivities.
#8: The White House should not be celebrating.
The 2012 election will now be a referendum on ObamaCare both
at the federal level, where repeal of ObamaCare will be determined, and at the
state level, where the future of the now-optional Medicaid extension will be
determined. That’s not a good thing for President Obama, as indicated by his
reticence about mentioning ObamaCare on the campaign trail. And that was before
the individual mandate became a tax.
Michael Shear of the New York Times sums up the President’s
problem:
“[T]he ruling also has the potential to re-energize the Tea
Party movement .. and provide new political power to Mitt Romney’s pledge to
repeal the law … Republicans eager to seize control of the Senate now have a
renewed rallying cry in races across the country.”
#9: Don’t let the oral argument or talking heads fool you.
Early on, I and other attorneys were convinced that 1) Chief
Justice Roberts, because of his minimalist tendencies, was as much a swing vote
in the ObamaCare case as Justice Kennedy, 2) it would be very tempting for
moderates on the Court to make the constitutional problem go away by calling
the individual mandate a tax, and 3) the legal challenge to the Medicaid
expansion was not being taken seriously enough because of the focus on the
mandate. By the time I finished listening to the oral arguments in the Supreme
Court and the talking heads on television, I had abandoned all three
convictions. I should have trusted my instincts.
#10: The meaning of the ObamaCare decision is yet to be
determined.
The malleability of Supreme Court decisions is demonstrated
by another landmark decision 34 years ago. Allan Bakke sued the University of
California over its use of minority preferences in admissions and won 5-4. A
single Justice, Lewis Powell, opined that a school’s interest in achieving
intellectual diversity could justify using race as one of many diversity
factors. Supporters of affirmative action successfully spun the decision to
mean that a majority of the Court supported the diversity rationale and that
the rationale could justify huge racial preferences aimed at only skin-deep
diversity.
Will the ObamaCare decision come to stand for the renewal of
federalism principles or for upholding the biggest federal overreach in
history? That will be determined by the litigation and communications skills of
federalism’s supporters and critics. Source
Curt Levey is a constitutional law attorney and President of
the Committee for Justice in Washington, DC. He can be reached at @Curt_Levey
on Twitter.
