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  • Kathryn Scott Osler / Denver Post

    A protester at a "Hands Off My Health Care" rally in Denver expresses his opinion of Chief Justice John Roberts following the decision by the U.S. Supreme Court to uphold the Affordable Care Act.

  • Stephan Savoia / Associated Press file

    Chief Justice John Roberts cast the deciding vote and wrote the 59-page opinion upholding the Affordable Care Act.

  • Ed Telfeyan

The Conversation: Roberts ruled to win in court of public opinion

Published: Sunday, Jul. 1, 2012 - 12:00 am | Page 1E
Last Modified: Friday, Jul. 12, 2013 - 11:30 pm

Last week's Supreme Court decision on the Patient Protection and Affordable Care Act shocked court observers for no less than three reasons. First, the court held that the law is constitutional. Second, it did so under Congress' taxing authority, not its commerce clause power. And third, its opinion was authored by Chief Justice John Roberts, who cast the deciding vote.

That third shocker is the one that may be the hardest to reconcile with expectations. Roberts is staunchly conservative and hardly considered a swing vote on most of the issues that come to the court.

He would hardly be expected to embrace legislation that its opponents consider a heinous overreach by the government into the decisions of private individuals regarding how they provide for their own health care needs.

As might be expected, Roberts is receiving grudging praise from the left and disappointment, if not condemnation, from the right. But a careful reading of his 59-page opinion reveals that he crafted it to reach the result he wanted. That kind of writing is properly identified as judicial activism and is condemned by most lawyers as "result-oriented" reasoning.

The proper role of a Supreme Court justice – of any judge, really – is to let the law dictate the result. Judicial reasoning – indeed, our entire system of law – is built on this premise. Thus, a calculus of sorts is involved in reaching a decision on a legal issue. The existing law, in this case the Constitution, is applied to the facts, in this case the Affordable Care Act, and the result is determined by seeing if the law fits the facts.

That calculus is not what directed Roberts in his opinion. His reasoning is too labored to allow that charitable judgment of his work.

The opinion is most effective in his reasoning on the commerce clause, where he finds that the power granted to Congress to regulate commerce requires that actual "activity" be involved. He then holds that a decision by an individual not to purchase health insurance is not such an "activity." Hence, on that basis he concludes that the law's individual mandate would be unconstitutional.

But Roberts then considers whether the mandate imposes a tax and is therefore constitutional under the power of Congress to "lay and collect taxes."

At this point, he has a problem. Earlier in his opinion he had dismissed the argument that the anti-injunction statute, which prohibits lawsuits against tax laws until the taxes have actually been collected, forestalled hearing the case on its merits. There, he held that the identification of the "penalty" assessed to those who did not purchase health insurance was not a tax.

But as to the authority of Congress to enact the mandate, he holds that the penalty is, indeed, a tax. He therefore "saves" the health care reform law by finding an alternative way for it to be constitutional.

That's a pretty nifty two-step. He first finds that Congress imposed only a penalty and not a tax, thereby avoiding application of the anti-injunction statute, but he then declares the penalty to be a tax, so as to find the mandate constitutional.

Such labored judicial reasoning is never pretty, and the dissenting justices do a nice job of dissecting Roberts' attempted logic, although they are kind enough not to accuse him of the result-oriented judicial activism that he most assuredly employed.

So, why did Roberts betray what must be assumed to be his natural inclination to reject the law in its entirety and instead craft an opinion to hold the Affordable Care Act constitutional?

Others will have their views, and historians may ultimately uncover the truth – perhaps in a Roberts memoir some 25 years from now. But the answer may be relatively simple.

Roberts may have felt a need to restore the public's perception of the integrity of the court. That perception has been tarnished since the decision in Bush v. Gore that many believe resolved the presidential election in 2000 on purely partisan grounds. And it has been enhanced by the Citizens United case that is largely blamed for the explosion of privately funded campaign ads that many view as a threat to the democracy.

The chief justice may not want the Roberts court to be so remembered by those pesky historians.

And if, indeed, Roberts was motivated by that concern, then he crafted an opinion that, although judicially suspect, met his goals. On the one hand, he restricted Congress' power under the commerce clause – thereby aligning himself with his conservative brethren on the core constitutional principle at stake in the case – while on the other he upheld the health care reform law – thereby restoring the integrity of the court in the public's view.

Roberts is a judicial activist. And in this case, true to form, he crafted his opinion to reach the result he wanted to reach.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Edward H. Telfeyan

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