Now that the national media has had a weekend to get its story straight regarding the facts of the Supreme Court's ruling on the Patient Protection and Affordable Care Act - better known as ObamaCare - it is possible to really delve into what the ruling means. As this author is neither a legal nor constitutional scholar, this article will leave a legal analysis to those better qualified to provide it and focus, instead, upon the political issues presented by this ruling.
So let us start at the top.
Roberts as the Swing Vote
The Court ruled 5 - 4 in favor of the mandate with Chief Justice Roberts writing the opinion of the Court. Traditionally the Chief Justice has the prerogative to write the Court's opinion when he sides with the majority but Roberts proved to be the swing vote on this case meaning that he would have written the opinion regardless of how he decided the case.
So why did Roberts cross the aisle? There are two schools of thought on this topic. The first is that, as Roberts stated in his confirmation hearings, the Chief Justice finds partisan 5-4 decisions to be damaging to the Court as an institution and that Roberts crossed the aisle to prevent the PPACA from being struck down on purely partisan grounds. Polls prior to the Court's decision showed that a vast majority of Americans thought the Court would allow partisanship to color or even determine its decision and thus Roberts may have been trying to protect the Court as a theoretically apolitical institution.
On the other hand, crossing the aisle on the most politically charged case in a generation seems to defeat the purpose of deflecting accusations of partisanship if, indeed, those accusations are substantiated. The Court's rulings on cases like Citizens United would seem to reaffirm criticisms that the members - and indeed Roberts himself - are politically polarized.
Another popular explanation for Roberts vote to uphold the mandate is that he wished to protect the Court's political capital in order to preserve it for future assaults upon other liberal institutions like Affirmative Action. Again, however, this argument falls flat; while the Court traditionally has had to manage its political image, it tends to gather its credibility on minor cases and spend it on major ones. If Roberts intends to invert this historical arrangement he has not signaled such intent before.
Taxation without Regulation
Of course, as CNN and Fox News found out to their detriment, the Court did not uphold the individual mandate based upon the Commerce Clause but under Congress' power to tax. Article I of the Constitution gives Congress the power to regulate commerce among the states but the Court found - again 5 to 4 - that this power did not extend to the right to order a person to purchase something. Fox and CNN read that and decided that meant the Court had struck the law down. A scant page later, however, the Court held that the mandate could be interpreted as a tax rather than a regulation under the Commerce Clause and therefore constitutional as justified by Congress' nearly unlimited power to tax.
Conservatives, looking for a silver lining in the ruling, championed this rationalization as a restraint upon the power of the Commerce Clause, long used by Liberal Courts to uphold all manner of expansions of Federal Power. While legally the ruling does establish a bound upon the use of the Commerce Clause (though one should note, no more of a bound than already established in Lopez) it, in almost the same breath, provides Congress with an entirely unchecked means to circumvent that boundary through taxation. As compromises go it is a singularly poor one for the Conservatives on the Court; one then wonders how the Court managed to arrive at it.
Scalia's Public Option
Justice Anton Scalia shares with Justice Clarence Thomas the distinction of being among the Court's most partisan, ideological, and conservative members. In the course of oral arguments, Scalia spouted off numerous talking points straight from right-wing talk radio and the RNC's blotter, questioning if the mandate gave the government the ability to compel the purchase of broccoli and critisizing the so-called "Cornhusker Kickback," a proposed amendment to the PPACA which does not even appear in the law as passed.
So it came as some surprise to read in Scalia's dissent that he found the mandate to be unconstitutional on the grounds that Congress could have found a less intrusive way to accomplish the same goals, specifically, Scalia suggests providing a low-cost competitor to private insurance. In other words, a public option.
Few would seriously argue that Scalia's dissent can be taken as an indication that he's actually in favor of a public option. Rather, it is far more likely that he is merely willing to use any an all ammunition at his disposal against the Obama administration. Nonetheless, the dissent is now part of the Courts' records and, in the event that something like a public option appears in the future, Scalia may have to wrestle with his own contention that it is less intrusive than the mandate he so vocally opposed.
That, however, is but one of many possibilities and a long way away in any case. Exactly how this case will be viewed by future Courts remains to be seen but the political questions it poses, particularly for a young Chief Justice like Roberts could well be the first clues as to what a Roberts Court will look like in the decades to come.