Super Chief

Ari Ezra Waldman has an informative analysis of the Supreme Court’s health care decision at Towleroad, with his thoughts about how it might throw some light on what the court would – or should – do if it accepts one of the several pending gay marriage cases, including a challenge to DOMA that is now at the head of the list.

But by framing his comments in the addicting polarity of the political left and right, I think he misses the more important constitutional thinking that animates the health care case, and particularly the role of Chief Justice John Roberts.

From the political perspective, the bottom line of the case is that the left won the policy while the right won the law.  Democrats get the health care reforms they fought very hard for, but as Waldman notes, the most conservative Republicans got limits on two of Congress’s most expansive powers – powers that have had few limits up until this decision: the authority to pass laws under the Commerce Clause, and a limit on how far the Spending Power goes before it coerces individual states.  Neither is much of a constraint, given existing Supreme Court rulings, but the opinion does draw lines that many people thought might be nonexistent.

But Chief Justice Roberts confounded the politics.  This most political of all cases is not fitting into the proper political boxes.  And in his introduction to the opinion, Roberts does his best, not only with rhetoric, but with his bottom line, to steer the court through the political shoals:

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

Our deference in matters of policy cannot, however, become abdication in matters of law. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” [citation] Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the constitution carefully constructed. “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”

The difference between policy and constitutional law are famously hard to define, and frequently get lost entirely in political discussions.  The Chief Justice wants his court to keep a close focus on the apolitical constitution, and particularly the limits it places on legislative authority.  Congress violated two very important limits in this case, and the court called them on their transgressions.

But the court must be as respectful of the constitution’s structural framework as possible, and that means upholding another branch’s decisions if there is any constitutional authority to do so.  While there were political problems for Congress if they said the penalty for failure to buy health insurance is a tax, that is an entirely fair characterization of what they did, and they do have the power to levy taxes. Just because Congress didn’t rely on that clear power – for obvious political reasons – doesn’t mean that, absent any other constitutional authority, the court cannot uphold their action based on this obvious but politically risky power.  As the Chief implied, it’s not the court’s job to protect people from their politicians, or politicians from the people.

While that might seem to be a problem for the DOMA cases, I think it works the other way.  Waldman focuses on conventional equal protection analysis, which holds that while the court defers to Congress on economic legislation, it should not do so when politically unpopular groups are disadvantaged by legislation.  That is a fair argument that dates back to 1938, and the most famous footnote in judicial history.

But the DOMA cases are the flip side of the health care case.  The health care decision is based on the powers Congress has been granted, but DOMA is about the limits the constitution places on what can be passed, even with constitutional authority.

The Equal Protection Clause is one of the “restraints on federal power that the constitution carefully constructed,” which Roberts and the court are bound to respect.  Lesbians and gay men have slowly been convincing the country, and the courts, that there are political reasons for elected officials to violate it and disadvantage them under the law.

It is easy enough for the court to hold elected officials responsible to the voters when they try to avoid facing up to a political reality like raising taxes.  But it will obviously be harder for the court to put itself in the public’s crosshairs.  But when it comes to the Bill of Rights, that is where the constitution places the court, for good or ill.  Sometimes the constitution puts the elected branches on the political hotseat, and sometimes it puts the court there.

That is why it is fair to hold the Chief Justice to the apt quotation from his great predecessor, Chief Justice John Marshall.  “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”  When a same-sex marriage case does make it to the highest court, Roberts’ hardest decision will be whether he believes the court that bears his name is stable enough to apply the same apolitical view of constitutional interpretation to itself that he has applied to Congress.

The health care opinion is a remarkably stabilizing decision.  The Chief Justice managed both the politics and the law well.  I think it is a hopeful sign.


10 Comments for “Super Chief”

  1. posted by Jorge on

    I agree 100%.

    I’ve only read Roberts’ and Thomas’ opinions, though, so my mind might change. There are some weaknesses in Roberts’ opinion.

    While I thought the law would probably get struck down, Roberts does not surprise me at all here. There are quite a few 6-3 decisions in which he is part of a liberal/conservative coalition, both in majority and in dissent. He strikes me as a less certain “conservative” vote than Rehnquist, yet moving the Court both toward the “right” and toward greater unanimity in particular cases. There are many other articles that describe how Roberts appears to be attempting to move against views that the Court is partisan, of which I’ll point out Michael Goodwin last two columns in the NY Post.

    The fact that so many conservatives are crying “OMG the traitor!” is unsurprising and disappointing.

  2. posted by Houndentenor on

    It makes me very nervous that the current court will rule on DOMA. It should be any easy victory. The federal government has no authority to ignore a state-issued marriage license. But I really don’t know if Kennedy and Roberts will see it that way. Fingers crossed. If we f&%$ this up, it could take decades to undo.

    • posted by Tom Scharbach on

      If we f&%$ this up, it could take decades to undo.

      “It” — the bulwark of anti-equality laws, regulations and constitutional amendments at state and federal level — is going to take decades to undo in any event. We need to push on every front, every day. If we wait until the conditions insure a victory, we will see another generation grow old before we do anything.

      In my view, we are in the best position we could be in to obtain a favorable ruling, both on DOMA Section 3 and on the Prop 8 case, given the Court’s makeup.

      The Section 3 DOMA challenge from Massachusetts is a “reserved powers” argument, an argument that has a strong basis in court precedent. The Prop 8 case is going forward on the narrowest possible grounds, confined to the unique legal/political situation in California and solidly based on the reasoning in Romer.

      We are in as good a position as we are going to get, in terms of cases that have a reasonably shot in the Roberts court.

  3. posted by Mark F. on

    In his majority opinion Justice Roberts specifically said the government does not have the authority, under the Commerce Clause, to compel Americans to buy a product. He then said it has unlimited power to tax people who do not buy products the government wants them to buy. This is a distinction without a difference.

    • posted by Jorge on

      Not really. You can always pay the tax.

      • posted by David Link on

        There’s an important difference, though. There are some pretty potent political concerns that come up with politicians raise taxes that it’s hard to ignore. That is a political check on the taxing power that doesn’t exist nearly so starkly when Congress relies on some other authority. That is why Congress so clearly refused to rely on their taxing power, and chose the Commerce Clause — to try and avoid the political fallout. It is less problematic, from the perspective of the constitution, that the taxing power is so broad, because the taxing power, itself, has political land mines built in.

  4. posted by TomJeffersonIII on

    1. The Federal Health care law strikes a middle ground balance between the far left (wants a single payer health care system) and the far right wants to just leave it all up to the private corporations and charity.

    2. The health care reforms will provide some relief for LGBT people who either cannot afford health insurance or what they can afford is practically worthless.

    3. The Supreme Court does not have to take a gay marriage case at all and it is probably not in too much hurry to address the issue again (after its early 1970s decision). Consistency is nice, even something to expect, but do not be surprised when you do not get it from a judge (or a politician).

  5. posted by tristram on

    “It makes me very nervous that the current court will rule on DOMA. ”

    @Houndentenor – The current court is as gay-friendly a court as we are likely to see for many years to come unless the Democrats obtain a (virtually impossible) filibuster-proof majority in the Senate come November. There are likely to be at least two court vacancies during the next 4-year Presidential term.

    Romney has signed his pledge to NOM, his party base will force him to nominate someone in the Scalia/Thomas mold (“No more Roberts’s!” – the cry is echoing in the corridors of the right), and the Senate Democrats will not have the numbers/cohesion/political strength to maintain a filibuster.

    If Obama is re-elected and Senate shifts modestly toward the Democrats, the Senate Democrats will still not have the numbers/cohesion/political strength to break a filibuster. Anyone Obama nominates will be confirmed only if he/she leans at least modestly to the right of the justice being replaced.

    With the current Court, there are now, surprisingly, two votes that could potentially swing against DOMA – Kennedy (see George Will’s comments of yesterday) and Roberts.

    • posted by Houndentenor on

      I do not expect Roberts to vote to overturn DOMA. He tends to side with the executive and legislative branches most of the time. That’s what his ruling on ACA is about. His position will be that if people want DOMA repealed, they should elect a Congress and President who will do so. Not a bad idea, actually, but that may or may not happen.

      You are right about the Court. It’s not likely to move any further to the left, but Ginsberg has health issues and if she were replaced by another Scalia there’s not a snowball’s chance in hell of any rulings in favor of citizen’s rights for a long long time. One more reason to vote to re-elect Obama in November.

      • posted by Jorge on

        Ginsberg has had health issues for over a decade, and Stevens has been old for still longer. I wouldn’t read too much into that kind of thing.

Comments are closed.