Last week the Supreme Court of the United States upheld the constitutionality of Obamacare. Chief Justice Roberts broke ranks with the conservatives and voted to uphold the law, thus giving the Obama administration a narrow margin of victory. The other conservative justices were reportedly outraged by his volt-face, and leaked documents painting Roberts in a very poor light. The image for this post represents some of the fury being directed Roberts way in conservative circles.
For his part, Roberts was able to rationalize his decision by equating minor penalties in Obamacare with a tax, thus sustaining the legislation as an exercise of the governments power to tax, but not its power to regulate commerce. The rational is clearly absurd, as it would make all fines, fees, assessments and so on the equivalent of a tax. But in so doing, he was able to hand fellow republicans another tax charge to level against the Obama administration. He was also able to save the court (at least in the short term) further disrepute for its obvious partisanship.
In the process, Roberts also introduced a novel interpretation of federal regulatory power, articulating a vague principle that would limit state obligations to comply with Federal law. This will be used as a loophole by many conservative state-houses to strip health care from tens of millions. As it is elaborated down the road, it may also complicate regulatory compliance with federal environmental and social policy making. For those of you familiar with the debate, it reminded me of the nullificationist doctrine whereby individual states (and in some interpretations, individuals) could choose to nullify (ignore) laws of the Federal government.
The curious thing is few on either the political left or right seems shocked by any of this. Gone was the usual talk of the justices being disinterested umpires simply calling the shots, or outrage over activist jurists. Journalists, politicians, scholars, and even former clerks of Roberts are avowing this as an expressly political decision, informed as well by his desire to salvage some good repute for the court, and thus his personal legacy as Chief Justice. The political right seems to agree, but regrets he was not more political active in blocking Obamacare.
From an ethics and interpretive policy perspective, this is a teachable moment. All theory and practice of judicial interpretation is just that, interpretation. Some jurists and scholars are honest about it, citing reason, evidence, precedence and evolving social values as a means to triangulate on the best decision in a case. Others are not at all honest, hiding their presuppositions and agendas behind terms like originalism and strict constructivism. This latter camp is morally corrosive, as it hides value-laden interpretations behind a mask of value-free objectivity. It was refreshing to see the real value conflict at the heart of this Supreme Court decision brought out into the open.
Note: There have been a number of good print and radio stories about the politicking within the court, especially around Citizens United and Obamacare. Places to start include the following.
Toobin, Jeffrey. 2012. Money Unlimited. The New Yorker.
Walsh, Joan. 2012. John Roberts Guilded Age SCOTUS. Salon.
Health Care Rulings Impact. On Point with Tom Ashbrook. 28 June 2012.
Image: Orthodoxnet.com Blog, from an article entitled John Roberts, America’s Latest Benedict Arnold, Betrays the American People, 28 June 2012.
