The Court's decision today to let stand the Congressional passage of the Affordable Care Act is historic. While it was welcomed with wild enthusiasm by some, others were shocked, dejected, depressed, and defiant. What seemed universal though was the surprise with which many on both the right and the left met the Roberts position and ultimately, his siding with the "liberal" majority in this case.
As a totally unrelated aside, note the quotes on the characterization of the 4 moderate judges as liberals. Now back to our regularly scheduled program ...
It comes as no surpise that Scalia led the conservative justices in opposition to the ACA. Alito and Thomas are likewise no big surprise. Thomas is a Scalia mini-me and Alito is another partisan hack. In fact, Thomas' wife made a lot of money from the anti-ACA lobby. In fact, his conflict of interest may be an impeachable offense. But that is another departure from the main point of THIS discussion.
If there is a surprise in this decision, it lies with Justice Kennedy's decision. While historically voting with conservative views, Kennedy has arisen in recent years as a voice of moderation, voting with the moderates from time to time in defense of reason when the partisans were clearly crossing the line.
So, that brings us to Justice Roberts. The surprise in Justice Robert's decision is unwarranted. In fact, his decision should have been predictable. Why? Jeffrey Toobin enlightened us in his New Yorker article of May 25th, 2009, "No More Mr. Nice Guy" as to how we might expect Judge Roberts to vote:
"The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
The Affordable Care Act is a much needed and long overdue line in the sand against an insurance industry that has put profits above the lives of all Americans in need of health care. While the insurance companies were forced to modify their heartless, predatory practices, the ACA came with a big wet kiss the very corprations it set out to regulate: the individual mandate. Many who followed the great national debate that accompanied passage of the ACA may remember that the disclaimer during that debate. It was clear early on that the insurance industry had already won no matter what came the legislation looked like coming out of committee.
So, dear friends, it should come as no surprise that the Chief Justice sided with the moderates whom the right loves to paint as "the most liberal court in American history." It should come as no surprise because Judge Roberts has "sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." He covered his two most important bases in this decision: the executive branch over the legislative and the corporate defendant over the individual plaintiff.
There may be some dispute over the preceding claim that Roberts has sided with the corporate defendant over the individual plaintiff. After all, isn't every small business in America subject to new requirements to provide health care to employees? It should be apparent that the Judge Roberts cares more about big business that is already providing insurance as a benefit of employment than those small businesses who cannot affort to. Those businesses that are not large enough to provide coverage for employees fit more closely into the individual plaintiff category than their big business cousins. Protecting a new, untapped market of clients for the insurance industry is clearly consistent with the Roberts judicial record.
Correction: Originally, it was reported that Scalia's wife made big money speaking to and in support of anti-ACA lobby. Thanks to The Reid Report for pointing out that it was actually Clarence Thomas' wife who was prostituting herself (my words, not Joy Reid's) to the anti-ACA lobby.