As a preliminary matter, I confess that I erred in my forecast as to the final SCOTUS decision to ultimately be entered on the ACA. While the vote on the constitutionality of the mandate under the Commerce Clause turned out exactly as I expected, I did not expect Roberts to uphold the mandate as a tax. His doing so shows the type of long-term thinking that is rarely seen in DC anymore.
The Roberts Court has been the kind of Court the GOP has been hoping for since the Nixon years. Not only is it "conservative" in the political sense as the term is currently used, but it is anything but conservative in its disegard for precedent and in its judicial activism. It is also not the least bit shy about issuing groundbreaking opinions based upon bare 5-4 majorities.
Given that set of circumstances, there was ample reason to suspect that this Court would gut the ACA if not overturn it in its entirety. It was a foregone conclusion that Scalia, Alito, and Thomas would vote to do so, and Kennedy was clearly leaning in their direction by the completion of oral argument. Roberts, however, appears to have taken a broader perspective here.
Maybe the best initial analysis of today's decision was written by Prof. Adam Winkler on SCOTUSBlog. Winkler initially notes:
With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president’s signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn’t want to go there.
Winkler notes that Roberts hasn't exactly shied away from activism prior to today:
Roberts’ humble move was a surprise only because his oft-stated concern for protecting the Court by avoiding bold rulings doesn’t always hold. Despite today’s decision, the Roberts Court is hardly conservative in the sense of cautious or avoiding bold rulings. In contrast to an older conservatism that emphasized judicial restraint, the Roberts Court is not hesitant to forcefully asserts its power.
Since John Roberts became Chief Justice in 2005, the Court has issued one landmark ruling after another. The Roberts Court gave us Citizens United, which struck down longstanding limits on corporate political spending. This Court also allowed new restrictions on women’s right to choose; became the first Supreme Court in American history to strike down a gun control law as a violation of the Second Amendment; effectively outlawed voluntary efforts by public schools to racially integrate; and curtailed the reach of environmental protections.
In many of these decisions, the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old. Prior to Citizens United, the Supreme Court had explicitly held in two cases that corporate political expenditures could be limited – the most recent of which was handed down in 2003. Six years before the Roberts Court upheld the federal ban on “partial birth” abortion, the Rehnquist Court, which wasn’t known for its liberal leanings, had overturned a nearly identical law.
Winkler notes the clearly political nature of this jurisprudence and the damage that the Court has suffered in public esteem as a result:
Perhaps as a result of the Roberts’ Court’s controversial 5-4 rulings, public opinion of the Court is at an historic low. Even after controversial rulings like Roe and Bush v. Gore, the Court still maintained high levels of public respect. But unlike the Warren Court, whose landmark rulings, though classified as “liberal,” didn’t match up with the platform of the Democratic Party – southern Democrats were the biggest opponents of Brown – its hard to ignore the consistent fit between the Roberts Court’s rulings and the Republican agenda.
Maybe that’s why recent polls show the Court’s public approval rating has dropped from over 80% in the 1990s to only 44% today. Three in four Americans now believe the justices’ votes are based on politics. Nothing could be worse for the Court’s institutional legitimacy.
The money paragraph in Winkler's piece comes at the end, where he notes that the Court will be addressing highly contentious issues next term:
Roberts may have voted to save healthcare because he wants to preserve the Court’s capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America’s commitment to civil rights for over forty years.
The Roberts Court has only just begun.
The Roberts Court has gone places never considered by the Burger Court and rarely considered by the Rehnquist Court. While B v. G will bother me until the day I die, that was, arguably the only Rehnquist Court decision in 19 years showed the same level of partisan activism as cases like
Citizens United and
DC v. Heller have shown in a much shorter time span. As Winkler suspects, the next term may show that we ain't seen nothin' yet from this Court, and Roberts can reasonably expect to be around for another 15-20 terms after that.
While I doubt that was necessarily his intent, Roberts handed the GOP a major talking point for the GE campaign. By upholding the mandate as a tax, he allows them to assert on the stump and on TV that Obamacare constitutes a tax increase. The mandate has always been unpopular, and it remains highly unpopular now. Upholding a provision that 70% of the country dislikes and officially calling it a tax to boot may prove to be a gift to the likes of Rove. Given his casual relationship w/ the truth, the GOP nominee will find a way to gloss over the inconvenient truth that he passed a similar mandate during the one term that he actually held public office.
There have been countless posts here about the Dems and their fixation w/ dry powder. As someone who thinks that the fixation has become a fetish that has caused far more harm that any conceivable good, I am willing to acknowledge an apparent master of the strategy. If, as Winkler forecasts, the Supremes gut the Voting Rights Act and abolish affirmative action in public education, we will see how truly effective that strategy was utilized today.
EDIT: This post on The Volokh Conspriacy speculates that the Scalia dissent may've originally been a majority opinion. As the post notes, Scalia consistently refers to Ginsburg's concurring opinion as "the Dissent." There is, I suspect, a fascinating background story here.