The following contribution to our post-decision symposium on the health care cases is written by Elizabeth B. Wydra, the Constitutional Accountability Center’s Chief Counsel. Elizabeth frequently participates in Supreme Court litigation and has argued several important cases in the federal courts of appeals. She joined CAC from private practice at Quinn Emanuel Urquhart Oliver & Hedges in San Francisco, where she was an attorney in the firm’s Supreme Court/appellate practice.

With all the conspiracy theories and vote-switching speculation swirling around Chief Justice John Roberts’s vote to uphold the constitutionality of the Affordable Care Act, everyone is missing the most obvious reason—Roberts clearly forgot Don Verrilli’s birthday (June 29) last year and felt like he needed to get him something really, really good this year.  Happy birthday, Solicitor General!

In all seriousness, before and after the healthcare ruling many observers mulled over the many reasons why the Chief Justice might be inclined to vote to uphold the Act, from legacy concerns to (rather ridiculous) claims of liberal intimidation to a “secret agenda.”  But what about the possibility that he voted with the more liberal Justices to affirm that the Constitution empowers the federal government to create national solutions to national problems—rejecting the cramped view of federal authority advocated by the ACA challengers and adopted by the joint dissent—simply because that is what he felt he was compelled to do based on his understanding of the law?

As Justice Ginsburg explained in her excellent opinion concurring in part and dissenting in part, the Constitution improved upon the dysfunctional Articles of Confederation—which, notably, did not give the central government the power to regulate interstate commerce or levy taxes—by establishing a federal government up to the task of governing the new nation.  Justice Ginsburg specifically cited to Resolution VI, adopted by the Constitutional Convention to guide the delegates drafting the Constitution’s specific list of powers, which declared that the national government should have the power to pass legislation “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.”  Among these specific powers were, of course, the authority to regulate interstate commerce, tax and spend for the general welfare, and pass laws “necessary and proper” to executing these specific powers.

Four of the Justices in the majority would have—correctly, in my view—upheld the ACA’s minimum coverage provision under the Commerce Clause.  Chief Justice Roberts, writing for himself alone, rejected the government’s Commerce Clause argument.  But, by finding that the so-called individual mandate was constitutionally enacted under the tax power, the Court majority definitely rejected a centerpiece argument of the tea party movement and other conservatives: that “Obamacare” was an unconstitutional federal overreach.  Coming from Chief Justice Roberts, this is a serious blow.

Given what we know about the Chief Justice’s background and politics, is it likely that he would have preferred to strike down the Act?  Yes, quite likely.  While noting that the Court should be reluctant to invalidate legislation passed by our democratically-elected representatives, Chief Justice Roberts was careful to say that the Court’s task was to pass on the law’s constitutionality, not its wisdom.  It bears noting that this focus—the law’s constitutionality, not its political merits—is attributable to the four more liberal Justices who joined the majority opinion, as well.  These Justices were far more likely to have been motivated by the compelling constitutional text and history detailed by Justice Ginsburg than by pure political preference, even if they personally supported healthcare reform.

Why does this matter?  Because so many jaded Washingtonians shrugged their shoulders before the ruling came down and dismissed the whole thing as “just politics.”  But the ruling actually says something about the Constitution and the role of the federal government—namely, that the Constitution empowers the federal government to respond to national problems like the health care crisis through comprehensive regulation like the Affordable Care Act.

The Supreme Court’s decision to uphold the Affordable Care Act in its entirety was obviously a victory for the Obama Administration, which saw the President’s signature legislative achievement affirmed as constitutional, and it was also a winning moment for judicial independence.  While this unquestionably burnishes Chief Justice Roberts’s legacy, I find it hard to believe that he would have voted the way he did if he did not think upholding the ACA was justified by the law.  That preserves the integrity of the Court as an institution worthy of the high regard in which the public has traditionally held it and maintains the Constitution as the touchstone of our justice system.

Which is a pretty great gift for us all.

Posted in Post-decision Health Care Symposium

Recommended Citation: Elizabeth Wydra, Law before politics: The Court affirms the constitutional power to solve national problems, SCOTUSblog (Jun. 29, 2012, 3:41 PM), http://www.scotusblog.com/2012/06/law-before-politics-the-court-affirms-the-constitutional-power-to-solve-national-problems/