The dust is beginning to settle in the wake of the Affordable Care Act decision from the Supreme Court. Chief Justice Roberts' opinion and the resulting 5-4 decision upholding the individual mandate have conservatives scratching their head (put mildly) and the liberals declaring victory with a strong hint of uneasiness.
On its face, upholding all but the Medicaid expansion is a major loss -- especially given that Justice Kennedy was on board for flexing the Tenth Amendment and curbing Congress' Commerce Clause and Spending Power that has authorized the gross expansion of federal power in recent decades. The addition of the Chief Justice's name to the 4-person dissent would have created a majority opinion that would have stood as a beacon for federal constitutional limits on federal power -- a true landmark opinion. The principal downside of the ACA decision is the opportunity lost. This could have been great.
What then is the upside? The Chief Justice's reported switch boxed the four liberal justices into a corner to sign off on an opinion that upholds the individual mandate because its "penalty" is really a "tax" -- something the liberals in Congress and President Obama said it was not. There are 7 votes recognizing real limits to Congress' ability to attach conditions to federal funds under its Spending Power -- a major victory long overdue. There are 5 votes that the ACA exceeded Congress' Commerce Clause power -- although you have to read two opinions that do not cross reference each other on this point.
If the reports of the alleged leak to Jan Crawford are to be believed, the Chief switched his vote in the beginning of June, long after assigning himself the majority opinion striking down in toto the ACA. In the process, he left high and dry none other than the key swing vote, Justice Kennedy, who, reportedly, fought valiantly to bring the Chief back into the fold. The tea leaves to be read from the opinions themselves would tend to support the validity of these reports.
The dissent reads like a majority opinion, drafted to lure the Chief back into the fold. It is well written, sweeping in scope, and crafted to lay down a marker for limited federal power. At the same time, it is remarkable in the way in which it completely ignores the Chief's opinion. Instead, it devotes its thrust and parry to Justice Ginsburg's opinion written to uphold in toto the ACA as a legitimate exercise of the Commerce Clause and Congress' Spending Power. The Chief's opinion has an eery "elephant in the room" quality when you finally get to the dissent. A fit of pique by the four jointly-authoring justices who felt betrayed?
Why did the Chief Justice fail to take advantage of the greatest opportunity in decades to join onto an opinion that would stand as the high water mark for federalism in the Court's jurisprudence? There are commentators including court-watching experts like Nina Totenberg who try to explain the Chief's switch as a result of the epiphany that comes from writing an opinion only to conclude in the writing that one's original premise was flawed. Observations like this, however, appear to be simply political cover. The Chief is a very, very smart justice, maybe one of the smartest to ever wear the Court's robe. Compare the dissent's analysis of why a "penalty" cannot be a "tax" with the Chief's opinion on the subject and make your own assessment.
The Chief made the decision he did for small "p" political reasons while not unmindful of the large "P" political consequences. Right or wrong, the Chief concluded that the Supreme Court as an institution would take too large of a hit to its credibility if it struck down the ACA in its entirety. The President and the other liberals would have simply unleashed hell on the Court and made the Court itself the center of a political debate. The ACA decision would have been characterized as the capstone of a series of "activist" decisions including Bush v. Gore and Citizens United. The Chief -- either with premeditation or upon reflection -- switched to steer the Court from the liberal firestorm that would have ensued.
Is this caving to pressure? Is this a sell out? Maybe. But he did what he thought he had to do given his role as Chief Justice. Again, there are "half loafs" in the ACA opinions as a whole for conservatives, noted above. Five votes for the good on the Commerce Clause and Seven regarding Congress' Spending Power are not insignificant. And, perhaps more importantly, branding the ACA as a tax -- despite the President's protestations to the contrary -- may be a nail in the ACA coffin that may have serious implications in the upcoming presidential election.
November will be an important measuring point for evaluating the Chief's handiwork. However, it will probably take a decade or more to get a handle on the full extent of the consequences. By keeping the Court's powder dry, does it now have the legitimacy for more Citizens Uniteds? Will the Chief react negatively to the pique that reportedly exists from his four jilted colleagues and move jurisprudentially? We'll need many terms of the Court to answer the myriad of questions that have and will arise from what the Chief has done.