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.