Roberts Rejects Partisanship in Backing Obama Health Law

With a single vote supporting President Barack Obama’s health-care law, Republican-appointed Chief Justice John Roberts asserted his independence and defused claims that partisanship rules the Supreme Court.

Roberts joined four Democratic-selected justices to uphold the biggest change to the U.S. medical system in a half-century. The law, almost universally rejected by Republicans, is designed to expand insurance to at least 30 million Americans.

The ruling injects nuance into the legacy of a chief justice who since his 2005 appointment by President George W. Bush has led the court’s conservative wing in supporting gun rights, overturning campaign-finance restrictions and limiting racial preferences. It came three days after Roberts and Justice Anthony Kennedy joined liberal justices in striking down most of an Arizona law cracking down on illegal immigrants.

“It would appear that he has put the prestige of the court and the institutional image of the court as nonpartisan above his ideological values,” said James F. Simon, the former dean of New York Law School and the author of six books about the Supreme Court, referring to the health-care law.

For Roberts, who worked in President Ronald Reagan’s administration and whose 2005 nomination then-Senator Obama opposed, the decision upholding the Patient Protection and Affordable Care Act almost certainly cut against his political and policy instincts. His vote helped avert the prospect of an ideologically divided court undercutting a president’s signature achievement little more than four months before an election.

Conservative Anchor

In his almost seven years as chief justice, Roberts has been an anchor of the court’s conservative wing. He also led the court when it allowed federal abortion restrictions and limited class-action lawsuits.

Even if Roberts didn’t always go as far as conservative colleagues Antonin Scalia and Clarence Thomas wanted, he at least was moving in the same direction.

“The health-care act case gave him an opportunity to detach himself from his ‘conservative’ colleagues and, because of his assignment power, write the opinion himself,” said G. Edward White, a professor at the University of Virginia School of Law, in an e-mail. “By doing so he looks like less of a partisan and more of a ‘statesman.’”

Public Disapproval

Roberts’s health-care opinion contained a handful of nuggets to please opponents of the law. He joined Scalia, Thomas, Kennedy and Samuel Alito in concluding that Congress’s authority over interstate commerce didn’t let it require people to get insurance or else pay a penalty.

That didn’t affect the outcome of the case because Roberts and four other justices said Congress could enact the requirement by using its ability to impose taxes. Even so, the commerce-clause reasoning puts new constraints on Congress’s power in the future.

Roberts also wrote that Congress went too far in its expansion of the Medicaid program for the poor. Writing for the court, he said the lawmakers can’t threaten to withhold existing funds from states that don’t fully comply with the expansion.

Still, he said the high court would be overstepping its bounds by invalidating the law.

“The court does not express any opinion on the wisdom of the Affordable Care Act,” he wrote. “Under the Constitution, that judgment is reserved to the people.”

Political Motives

The ruling comes at a time when the public is quick to attribute political motives to the court. A Bloomberg National Poll conducted in March found that three-quarters of Americans expected the Supreme Court to be influenced by politics in the health-care ruling.

A New York Times poll conducted May 31-June 3 found that 76 percent of those surveyed believed the justices sometimes let their personal or political views influence their decisions.

Roberts’s political leanings were clear when he was selected by Bush to succeed William Rehnquist, the conservative chief justice for whom Roberts once served as a law clerk.

Memos from his days as a Reagan administration attorney showed Roberts to be an outspoken, sometimes wisecracking skeptic of sweeping civil rights laws. As a Supreme Court lawyer for President George H.W. Bush, Roberts signed a brief urging the justices to overturn the landmark Roe v. Wade abortion- rights decision.

During his confirmation hearing, Roberts assured Democrats he would have “no agenda” as chief justice, and that “I prefer to be known as a modest judge.” He likened the job to being a baseball umpire calling balls and strikes.

Democratic Support

Those words helped win the support of half the chamber’s Democrats as Roberts won approval 78-22.

Roberts took his seat vowing to seek common ground among the justices. He found consensus during his first term, when the court resolved more than half its cases, including fights over abortion and campaign-finance restrictions, without dissent.

Then things started to change. Over the next five years, the court resolved most of its highest profile cases on 5-4 votes -- more often than not with Roberts joining Scalia, Kennedy, Thomas and Alito in the majority.

That ideological divide became a partisan one in 2010, when Obama appointed Elena Kagan to succeed the retiring Justice John Paul Stevens. The selection meant that, for the first time, the court’s four Democratic appointees were also its four most liberal. In the following term, the court divided along partisan lines in a dozen cases, including a nationwide gender-bias suit against Wal-Mart Stores Inc. (WMT)

Drawing Criticism

Those rulings drew criticism from Democrats, including Senator Pat Leahy, the Judiciary Committee chairman who supported Roberts’ nomination. The Vermont Democrat likened Roberts to a Major League Baseball umpire who had “spoiled a perfect game by saying somebody was safe when they were obviously out.”

Now Roberts is the toast of Democrats -- and the bane of at least some Republicans.

“In this case, at least, the chief justice was acting as the umpire that he promised to be,” said Senator Charles Schumer of New York, the chamber’s third-ranking Democrat. “His was a welcome display of judicial independence.”

Mathew Staver, who argued a case against the law in Virginia, said Roberts was no longer a “reliable interpreter” of the Constitution. “Roberts mismanaged the case and betrayed the Constitution by this frankly bizarre ruling,” said Staver, dean of the Liberty University School of Law.

The ruling “doesn’t tell me anything consistent that allows me to predict how he thinks and what he thinks,” said Virginia Attorney General Kenneth Cuccinelli, a Republican who filed a separate lawsuit challenging the law. “As someone who deals in the law, I don’t find that to be terribly encouraging.”

Obama Relationship

The ruling adds a new element to what was already a complicated relationship between Obama and Roberts, each a Harvard Law School graduate who rose to the pinnacle of one branch of government. Their paths crossed in 2005 when then- Senator Obama of Illinois met with and then voted against Roberts as chief justice.

The two met again after Obama’s 2008 election when Roberts invited the president-elect to visit the court. They then shared an awkward moment at Obama’s inauguration when the normally smooth-talking Roberts bungled the wording of the oath he was administering. Roberts and Obama repeated the swearing-in the next day at the White House to guard against any legal questions.

The relationship grew tenser in 2010 when, with Roberts and other justices in attendance, Obama used his State of the Union address to criticize the court’s just-issued ruling allowing unlimited corporate campaign spending. Roberts and his colleagues sat stone-faced as Democratic lawmakers stood and cheered.

‘Pep Rally’

Roberts later called the annual speech a “political pep rally” and questioned whether the justices should continue to go. Even so, the chief justice attended the following year, the only one of the court’s five Republican appointees to do so.

Now Roberts has become the man who saved Obama’s signature law -- and prevented the court from splitting along partisan lines in the biggest case in years.

“There are important cases in which the chief justice has to put the court’s interests above his own ideological or jurisprudential views,” said Anne Joseph O’Connell, a professor at the University of California Berkeley School of Law. “This was one such case.”

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

Bloomberg reserves the right to remove comments but is under no obligation to do so, or to explain individual moderation decisions.

Please enable JavaScript to view the comments powered by Disqus.