Justice Robert's Compromise

The votes that could be relied upon for and against the Affordable Health Care Act were known before the opening arguments in the case. But what would the middle of the road justices do? That was the big question, and things were not looking good for the Affordable Healthcare Act up until yesterday's decision was announced. One ray of hope ahead of the decision came from Justice Roberts, when he said on the third and final day of argument that states have been compromising their sovereignty for decades through increased reliance upon the federal government for money and accompanying directions on the governance of state affairs. The other is that Justice Roberts himself has a pre-existing medical condition that would impact his ability to purchase health insurance as an individual. Maybe he considered that. Those were the rays that shone bright yesterday. Chief Justice Roberts cobbled together an opinion about the Affordable Healthcare Act that is worthy of Chief Justice Marshall, my very favorite Chief Justice of all time. In doing so, he created some unusual alliances along some tricky lines of ideology, but it will work in the short run, at least. What he did was to put together a narrow majority of the justices who value societal justice to save the law by arguing that the individual mandate is a tax. Meanwhile he assembled a majority with the ultra-conservative justices to hold that the law otherwise would have violated the Commerce Clause. The decision allows Roberts to protect the Court against criticism it was usurping the legislative process, while simultaneously warning Congress that if it wants to enact sweeping legislation like this in the future it had better stay on the right side of the Commerce Clause. Otherwise “the Government’s logic would justify a mandatory purchase to solve almost any problem.”