Supreme Courtís Decision to uphold the Affordable
Care Act shocked Court watchers and Pundits alike.
President Obama pulled victory from the jaws of defeat,
while the Republicans may have pulled defeat from
the jaws of victory. There is no doubt the American
people come out the winners in this decision, but
why did Chief Justice John Roberts change his vote,
after writing much of the dissenting opinion of the
Courtís conservative bloc?
you have to do the right thing regardless of what
your friends want you to do
Roberts has a reputation as a legal scholar. Much
of the Courtís conservative bloc are ideologues who donít hold much a regard for the law.
Roberts knew the law was within Congressí authority.
He still threw the conservatives a bone by trying
to categorized the Act as
ďa tax.Ē In reality, the Affordable Act simply expanded
the care already being offered by Medicare. It isnít
single-payer like Medicare, because it offers patients
choices to select care, but it forces those who donít
enroll with some care provider to pay a penalty -
thus earning the title of a ďgovernment mandate.Ē
In reality, the Act simply closes the huge gap in
the social safety net that Health Maintenance Organizations
(HMOs) created by being able to cherry pick who they
would cover, and being able to deny treatment to people
with expensive medical bills and people with preexisting
lawmakers and pundits only challenged the law because
they had no power to stop it in the federal legislature.
They saw the U.S. Supreme Court as a backstop against
so-called liberal lawmaking and thought they
had the majority on the court to overturn what they
are still threatening to repeal. ďObamacareĒ was so politicized that Republicans forgot about
the law, and the rightness of the law - whether they
liked the policy or not. Supreme Court decisions side
with the law. They donít make up the law. Ideologues
try to make up the law, then
try to find case law to back it up. Roberts knew the
law was on the side of the Affordable Care Act, and
he was concerned about how history would view the
Roberts Court in the aftermath of an unsubstantiated
decision. Roberts, like Obama, understood the politics
of the outcome - ideological rationale notwithstanding.
Sometimes, you have to do the right thing regardless
of what your friends want you to do. Robertsí friends
wanted him to play politicsÖand he did, for a minute.
But history will show Roberts was on the right side
of history and the pundits were simply trying to score
political points in an election year.
this; Itís been nearly forty years since the Court has been considered
ďactivist.Ē Not since the Burger
Court decided a womanís right to choose in the decision
of Roe v. Wade, in 1973, had conservatives
even had to worry about a left-leaning high court.
Reaganís appointments (four), of which two are still
on the court (Kennedy and Scalia), pushed the Court
from left of center to right of center - where it
has been every since. George H.W. Bushís two appointments,
one of which is still on the court (the infamous Clarence
Thomas), cemented the Court in two decades of ideological
review under the longest serving Chief Justice in
U.S. History, William Rhenquist,
thus ensuring that there would never be another
Brown decision that would disrupt the social
order of things to the degree the desegregation of
society did. Roberts, a Bush II appointee, came on
the court at a time when it had lost its ideological
leader (Rhenquist) and its
scholarly center, as Scalia and Thomas sought to politicize
every legal decision during their tenure, while rarely
having case law on their side. Laws that adversely
affected vulnerable populations were upheld by the
Conservative right. Many of them were unpopular with
the American people and served the interest of an
oligarchic few. But rarely did any of them pit two
branches of government against each other. Most of
them didnít involve acts of Congress.
thought they had the majority on the court to overturn
what they are still threatening to repeal
Constitution gives Congress the sole authority to
legislate as ďnecessary and properĒ to run the country.
The Affordable Care Act was both necessary
and proper. The anti-taxation rhetoric of the Tea
Party doesnít strip Congress of the right to
tax. Plain and simple. Nor
does it abrogate Congressí power to regulate commerce.
Health care is commerce. Roberts probably looked for
loopholes to side against the act (which is why he
wrote on both sides of the opinion) - and if he was
a real ideologue, he probably could have found one,
but he is a legal scholar first and ideologue second.
Ideology doesnít stand above the law - it never has.
Ideology only skews how one can interpret the
law. But the law is still the law. Thatís why
Roberts reversed himself. He took an oath to uphold
the law - not to uphold ideology. Thatís the tough
lesson the Republicans just learned and itís why federal
judges are appointed for life, to insulate themselves
from the politics of the day. In the end, law - not
politics - won out.
many Americans, thatís all they want out of the Court,
judicial prudence. And thatís what they got in the
Roberts decision on the Affordable Care Act. More
than a victory for the Obama Administration, the decision
proved that judicial temperament is still intact.
Dr. Anthony Asadullah Samad,
is a national columnist, managing director of the
Urban Issues Forum
and author of
Saving The Race: Empowerment Through Wisdom. His Website is AnthonySamad.com. Twitter @dranthonysamad. Click
to contact Dr. Samad.