Chief Justice John Roberts has big plans after the end of the current Supreme Court term. He will be hopping on a plane to Japan, half a world away from any fallout that may result in the aftermath of King v. Burwell, the closely watched challenge to the Affordable Care Act. According to SCOTUSblog, that decision could come as early as this Friday.
Three years ago, when Roberts first saved President Obama’s signature law, he headed for the other side of the globe, to Malta — a CBS News scoop about a vote switch and internal “arm-twisting” by Roberts aroused such conservative wrath, the Mediterranean island seemed like a good place for him to teach some law and weather the controversy. “After ruling, Roberts makes a getaway from the scorn,” said the Times.
No one knows where the chief justice stands in King, but there are real-world, pragmatic reasons for him to side with the government again — even more so than with NFIB v. Sebelius, which threatened a law still in its infancy and not yet fully implemented. Now the prospects of unraveling insurance markets and millions losing health-care subsidies with an adverse ruling are real, and Roberts more than any of the justices cares about these things because the court bears his name and anything the court does, whether he had something to do with it or not, falls under his legacy. He’s the most accountable member of the least accountable branch.
But consider also that by the time a decision is announced, Roberts will have finished his tenth year on the Supreme Court — a milestone legal scholars and commentators will seize on to discuss that legacy, his jurisprudence, and whether he has delivered on his promise to be the kind of chief justice who merely “calls balls and strikes,” as he famously said during his confirmation hearings. Just yesterday, the Upshot suggested the court is leaning leftward more than any other time in recent history. And other retrospectives have begun to roll out: the Constitutional Accountability Center, a legal advocacy group, has published a series of reports on Roberts’s first decade and his record — on civil rights, campaign finance, access to justice, the environment, equality. The kinds of cases the public cares about. And yes, that includes health care.
The Roberts Court already stands for some pretty awful things — two of its most reviled rulings, Citizens United v. FEC and Shelby County v. Holder, simultaneously made it easier for corporations to participate in the political process and harder for regular citizens to do the same. But that’s far from the whole picture. Roberts did the unthinkable in April when he joined his liberal colleagues to curb the influence of money in politics, in a case that sought to extend the reasoning of Citizens United to the realm of judicial elections. “Judges are not politicians, even when they come to the bench by way of the ballot,” Roberts wrote, and concluded that the First Amendment was no bar for a state to restrict campaign solicitations by judicial candidates.
The chief’s stance in that case didn’t just break from the court’s recent jurisprudence on campaign finance, but his alignment with the liberal wing called to mind the first Obamacare case. From a purely normative standpoint, it is perfectly reasonable for Roberts, in King, to choose to be consistent with his prior view that the Supreme Court’s role is not to “express any opinion on the wisdom of the Affordable Care Act,” but rather that the Constitution leaves that policy judgment to the people. And the people have spoken by passing the law, allowing it to go into effect, and refusing to fix it — despite Republican claims that they have a better alternative. Obamacare is now a fact of life for millions.
Legal formalists will say that Roberts and the rest of the court have a constitutional duty to hear every case and controversy on the merits, and that Roberts’s first vote in NFIB v. Sebelius has no bearing on how he’ll vote in King. But that overlooks the above realities, or how this case even came to the justices’ attention in the first place. From the outset, there was no real reason for the Supreme Court to even hear King — there was no split in the lower courts calling for swift action, and a federal appeals court in Washington, the most important in the country, was in the midst of reviewing a similar challenge. Why the urgency to hear a fanciful statutory challenge?
For no other reason than it only takes four votes to accept a case. And it is not beyond the realm of possibility that the same four justices who would’ve gotten rid of the Affordable Care Act on constitutional grounds would entertain a quirky textual argument that, by most accounts, seems manufactured at best. Or in the words of Linda Greenhouse at the Times, King being put on the court’s docket represents “a naked power grab by conservative justices.” Of course, now that the case is fully briefed and argued, King has taken on a life of its own — Justice Anthony Kennedy warned of a “serious constitutional problem” if the court accepted the argument that the law was written so as to leave the states with no choice but to set up health-care exchanges.
But the court doesn’t have to go that route. In fact, Roberts’s lone substantive question at oral arguments — perhaps out of concern that he was being watched — pointed to what’s perhaps the cleanest and least controversial avenue for upholding affordable health care for all: deference to the federal government’s interpretation of the statute. That’s a route that’s well-established at law, and one that prevents the court from looking too hard at the intentions of Congress and committee deliberations. And best yet, it leaves the ball in the hands of the political process to fix or unfix Obamacare.
And letting the elected rather than the unelected respond for the political consequences of Obamacare is precisely the Roberts thing to do. It’s not exactly the same thing as calling balls and strikes, but it’s a sensible approach that will do the least damage to the court, his legacy as chief justice, and the separation of powers. Roberts may even enjoy his stay abroad this time.