If you are a conservative you may feel like you will never be able to forgive him. Right now you feel betrayed, hurt, and confused. As you toss and turn in your bed, thinking to yourself that there is no possible way your relationship can survive, I am here to tell you that he is not cheating on you. Instead, this is a communication problem.
The Supreme Court’s Chief Justice John Roberts still loves you. And he still loves Federalism. You just have to see his view and I think you and he might come to an understanding.
If you are like me, you are shocked that Chief Justice Roberts was the man to save the individual mandate. While some political commentaries make the claim that Roberts joined the “liberals” on this issue, I don’t buy that. I think it is safe to say that Roberts didn’t believe that the Affordable Care Act was necessarily a good idea.
The real reason he joined the liberal members of the court was for legitimacy. Here is something conservatives may find reassuring. He has done something that conservatives have always wanted to do since the New Deal, and that is: limit the power of the Commerce Clause. And he did it while making the Supreme Court look like it was above the everyday politics – appeasing the American people – while at the same time staying true to his values.
I admit that this is a very cynical way of looking at what Roberts did. But, I think that if you take a look back into history you will understand where I am coming from.
After the infamous Bush v. Gore case and the Citizens United Case (to name a few contentious cases brought before our highest court in recent years), Americans realized that the judicial branch was like all the other branches of Government, an increasingly partisan political institution. Whenever Americans hear anything about the Supreme Court it is about another 5-4 decision. This has made the public opinion of the Supreme Court go down year after year.
At the risk of sounding like your average high school government teacher, we all know the Supreme Court has no real power. It has no money nor an army to enforce its rulings. All it has is legitimacy, and it is crucial that the Court maintain that.
Roberts is quite aware that the legitimacy of the court is at risk. So what do you do? You give the key legislation of the President a pass, join the other “side,” and make the appearance that the Court is not as divided as everyone thinks it is.
Problem solved. Sort of.
In the end, Roberts can’t simply abandon his values for the sake of opinion polls and how the public feels about something at any given time. So he did something very unexpected: he agreed to disagree.
The first thing he did was to limit the power of the Commerce Clause:
“To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.” (Article I, section 8, Clause 3)
This particular clause has become the most hated part of the Constitution by many streams of conservatives. It has been used as the justification of all Progressive and New Deal Era programs: The Voting Rights Act, Medicare, Social Security, Medicare, Medicaid, child labor laws, minimum wage laws, banking regulations, pollution regulations; even things like the National Weather Service and the FAA have come from the Commerce Clause.
If you are someone who believes the only thing the government involve itself with is national defense, chances are that you really hate the Commerce Clause. And I think it is safe to say that Roberts is not a big fan of the Commerce Clause. In his Senate confirmation hearing, Roberts said:
“I think it remains to be seen, in subsequent decisions, how rigorous a showing, and in many cases, it is just a showing. It’s not a question of an abstract fact, does this affect interstate commerce or not, but has this body, the Congress, demonstrated the impact on interstate commerce that drove them to legislate?”
So what does he do to justify the individual mandate, while at the same time setting new legal precedent to the Commerce Clause? He uses the taxing power of Congress. A win-win, right? The public legitimacy of the court is upheld (or at least placated) and the Commerce Clause is weakened.
What Justice Roberts has done will have some unattended consequences. First he has given the Republican Party a new talking point: Obama is taxing you. If there is one word Americans hate, it is the word “tax.” Roberts, additionally, created a new precedent on what exactly the Commerce Clause can do. Conservative lawyers, judges, and politicians will use it in crafting and deciding old and new policies.
This new way of thinking of the Commerce Clause could be used in the next Supreme Court session, which may have cases impacting policies such as affirmative action and the Voting Rights Act. So while liberals are cheering now, they really should be paying attention. This case will surely have a ripple effect on future cases, and could possibly change the life of the Commerce Clause.
A new definition and future application of the Commerce Clause could leave all of us, on all political sides, struggling to deal with new realities as a result of this monumental decision.