Jeffrey Toobin: To Your Health

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http://www.newyorker.com/talk/comment/2012/07/09/120709taco_talk_toobin

To Your Health
by Jeffrey Toobin
July 9, 2012



When Chief Justice John Roberts emerged from behind the red curtain and took his seat at the center of the Supreme Court bench last Thursday, he did not look like his usual self. The brisk confidence of the Midwestern burgher was absent, replaced by a more sombre mien. His eyes were red-rimmed and downcast, his voice nearly a mumble. The announcement of the Court’s decision in National Federation of Independent Business v. Sebelius was clearly an unhappy duty for him. It’s easy to see why. By affirming the constitutionality of the Affordable Care Act—the legislative cornerstone of Barack Obama’s Presidency—Roberts was disappointing those closest to him. Roberts was a professional Republican: a staffer in the Reagan and Bush I Administrations, a judge and a Justice thanks to Bush II. And here, alone and exposed, Roberts joined with the Court’s four liberals to dash the Republican Party’s most fervent wishes. It was a singular act of courage.

One hopes, then, that it is not too churlish to point out that this should have been an easy case. The core dispute before the Court involved the portion of the A.C.A. which requires all Americans, eventually, to have health insurance. Failure to comply with the so-called individual mandate subjects scofflaws to a modest fee, to be paid when they file their tax returns. The basic idea for the mandate had bounced around policy circles for years, usually with Republican sponsors. As governor of Massachusetts, Mitt Romney implemented an individual-mandate system; as President, Obama based his proposal, more or less, on Romney’s. For two decades—from the mandate’s début in a policy proposal released by the right-wing Heritage Foundation to shortly before Congress voted on the A.C.A.—no one suggested that there was any constitutional problem with the idea. This is because there isn’t one.

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It is tempting to see, in the Chief Justice’s work in the health-care case, the possibility of some very long-range thinking. By siding with the liberals, Roberts insulates himself from charges of partisanship for the foreseeable future. This may be worth remembering next year, when the Court, led by the Chief Justice, is likely to strike down both the use of affirmative action in college admissions and the heart of the Voting Rights Act of 1965. And if, in the same year, the Justices uphold the noxious Defense of Marriage Act, many will deem Roberts’s motives beyond reproach.

It is also worth remembering that Roberts’s narrow conception of the Commerce Clause is now the law of the land. This new rule may limit the ability of Congress to expand the size of the government, and, indeed, may invite challenges to some government programs that are currently on the books, such as federal consumer safety or even seat-belt laws. In Ginsburg’s apt phrase, Roberts’s reading of the Commerce Clause is “stunningly retrogressive”—that is, a throwback to the pre-1937 state of the law. That may be Roberts’s goal. His doctrinal investments may take a while to pay off, but he has the luxury of guaranteed professional longevity. Roberts could still be Chief Justice when Obama is teaching the jump shot to Malia’s and Sasha’s children. By then, if Roberts has succeeded in limiting the scope of federal power, the health-care decision may look very different from how it looks today.

But that is all some way off. And it is always possible to quibble about one facet or another of even the best judicial opinions. For today, it is enough to say that the Chief Justice and the Court did the right thing in one of the most important cases that they will ever decide. That was by no means inevitable or even foreseeable. It is, rather, something to savor. ?