John Roberts' Long March

John Roberts' Long March

by digby

So now John Roberts is a liberal. Ann Coulter has spent the entire day tweeting "I told you so." Or he is the victim of nefarious Kenyan blackmail. And apparently, he changed his mind (or at least some people are parsing that from wording in the decision) after originally voting to strike down the mandate.

I don't suppose we'll ever know what made him vote the way he did. But I personally wouldn't be surprised if he was worried about the court's legitimacy --- and therefore its power --- if they were to strike this down. There's been an awful lot of talk about the loss of faith in institutions and the destruction of democratic norms in recent times, some of which was perpetrated by the court itself. Bush vs Gore was a blight that cannot be erased and Citizens United was the latest in a series of rulings that are threatening our democracy in a very fundamental way. To strike this down in a 5-4 decision in this political climate (even if it were legally reasonable) could very well have sealed the belief that the Court is a partisan power tool. I would guess Roberts prefers to have his era be thought of as a legitimate conservative juris prudential revolution than as mere hackish devotion to the parochial political concerns of the day. He's willing to take the time to build that slowly, one precedent at a time.

And keep in mind that there's conservative and then there's conservative. Here's Stephanie Mencimer:

The ever-powerful US Chamber of Commerce, whose legal eagles are in the midst of one of the most amazing runs of success in Supreme Court history, did not oppose the law. Like the insurance industry, the Chamber did not take a position on the individual mandate or other parts of the law. Instead, it merely urged to court to act quickly to settle the outstanding legal issues. Like AHIP, the Chamber argued that the fate of the mandate should be bound to that of the other insurance reforms—if one went, the other would have to be scrapped, too. Other business groups also avoided the fight or signed up for the other side. The hospital industry supported upholding the law's Medicaid expansion. The pharmaceutical industry’s lobbying arm, PhRMA, which timidly supported the original bill, didn't weigh in at all.

So business wasn't really a part of the anti-Obamacare coalition. Instead, the primary legal challenges to the ACA came from states headed by right-wing (and often unpopular) ideological governors, and the states' outside support came from equally ideological advocacy organizations, such as the Family Research Council and fringe physicians' groups. But their lack of support from the business community is notable, and it may be the one reason why Justice John Roberts decided the case the way he did.

Roberts is conservative, but not in the same way as Justices Antonin Scalia or Clarence Thomas. He's more of a white-shoe law firm kind of guy, which is fitting for someone who was a partner at the corporate law firm Hogan & Hartson (now Hogan Lovells). As such, he's got some of the pragmatism of a corporate lawyer, and his sympathy for the business community's arguments has been plain from the time he was first confirmed. (See: Citizens United.) If the US Chamber of Commerce didn't see fit to argue that the ACA was unconstitutional, it's not surprising that Roberts didn't, either.
Unlike his right wing brethren on the Court, it would appear that Roberts is ideological to the extent that ideology serves money. Most of the time that makes a majority with Thomas, Alito, Scalia and Kennedy. In this case, due to the nature of the law and its goals, it swung the other way. But Roberts wasn't being inconsistent. He delivered.

The Supreme Court is where the real conservative revolution --- the corporate revolution --- is going to be taking place over the next several years. Today Chief Justice Roberts went a long way toward ensuring that it will have the legitimacy to get that done.

I'll be very anxious to see how striking down the mandate under the commerce clause plays out --- I suspect Roberts is being very clever there. And, as I have always feared, the Medicaid expansion is the weak link. Everyone seems to think that the wingnut Governors won't be able to resist the free money, but they've been pretty willing to forego filthy Planned Parenthood and Unemployment Insurance cash, so I'm not totally convinced. Perhaps more importantly, the mechanism that Roberts came up with (signed on to by 7 justices) is one that could have a very serious effect on the future ability of the federal government to manage national social programs. So we'll have to see what the reverberations will be down the road.

At this moment, on this day, I'm not inclined to carp too much. It happens to be a law that will extend health insurance to some number of people who wouldn't have been able to get it before and that's a big fucking deal. But there's also no doubt in my mind that it came at a price.

Say what you will about Chief Justice Roberts, but he's not a liberal in sheep's clothing --- he's very smart and that he's playing a very long game. Lifetime appointments are good for that sort of thing. The good news is that in the course of enacting his long term agenda today he has helped some average people. We take what we can get.