Additional Thoughts on the United States Supreme Court Ruling on the Federalization of Health Insurance

            I noted several positives in my last post for conservatism and federalism in the recent United States Supreme Court ruling on the federalization of health insurance, which I hope my readers found heartening. 

Many fellow conservatives have expressed deep disappointment over the ruling because it upheld the individual mandate to purchase health insurance, which was the lynchpin of the legislation passed by the liberal Democratic Congressional majority and signed by President Barak Obama.  The entire law could have been overturned had the mandate been ruled unconstitutional.  I write this post to hearten further my fellow conservatives.

            We conservatives ought not to act like liberals.  Conservatives should avoid the practice of many liberals to make unnecessary ad hominem arguments against those with whom we disagree.  We should not expect an outcome of a case to be based upon ideology or politics, like liberals do, but the Constitution or the law, as originally intended.  We must also accept that the principle of judicial restraint requires deference to the powers of the Legislative Branch, which is representative of the People, even if the law were bad, unpopular, or were approved dishonestly, as long as it is constitutional.  

In significant cases, I read the entire majority, concurring and dissenting opinions, particularly of the conservative Justices, including all of their footnotes – a practice I recommend.  The scholarly opinions of Supreme Court Justices are generally based upon legislative history, precedent and reason.  The Justices are influenced by ideology, but generally not by partisan politics. 

            Although I agree more with the conservative dissenters in this case, I believe Chief Justice John Roberts was reasonable in reaching his decision in favor of upholding the individual mandate.  The conservative dissenters noted that this case was “difficult” because it was one of “first impressions” in a number of areas, meaning that there was little or no precedent.  Thus, Roberts cannot be accused of overly adhering to precedent. Unlike liberals, the Chief Justice did not base his decision on his desire for a particular outcome.  Indeed, he upheld the law on constitutional grounds even though he did not support it on its merits.  In reaching his decision, Roberts neither changed the meaning of the words of the Constitution nor discovered new rights nor cited foreign law as an authority, as liberals do.

            In fact, the Chief Justice deftly got liberals to agree with several conservative and federalist principles in gaining a number of important victories in this case.  In some respects, Roberts was successful even without the conservative Justices, whose opinion, although called a “dissent” was actually only a dissent in part and a concurrence in part.  Where they concurred, he and the conservatives thus gained a larger margin of victory than otherwise would have been expected.  In other words, Roberts reached an outcome favored by the liberals, but in a conservative manner. 

            I should note an additional benefit of Roberts’ opinion: in going out of his way to defer to the Legislative Branch, Roberts now has a free hand to strike down Executive Branch mandates, for which no judicial deference is due, such as the Obama Administration’s mandate that employers provide health insurance for sterilization, contraception and abortifacients.       

It can only be speculated that perhaps there were some intimidation of the Supreme Court by the media or Obama.  Public confidence in the Court is a legitimate concern for a chief justice, although it must be balanced by judicial independence.  Even though there was a history until recently of Republican-appointed Justices voting for liberal positions, Bush v. Gore subjected the Court to the unfair criticism of partisanship.  The open disagreements between Obama and the Court exacerbated the perception.  Henceforth, because of this case, whenever Roberts joins with his fellow conservatives on the Court, he can no longer be dismissed as lacking independence in terms of partisanship or ideology. 

One area of particular concern raised by the conservative dissenters in this case is worth further examination.  Because of Chief Justice Roberts’ necessary deference to the Legislative Branch, he argued in his opinion that the remedy to fix a law is required by precedent to be narrow in order to save as much of the law as possible.   However, fixing the law is not the job of the Court.  The conservatives observed that Roberts’ fixes seem to substitute his view for the Legislative Branch’s intent.  For example, the right of the States to opt out of the Medicaid expansion was arguably not the legislative intent of Congress because the result could be a patchwork of vastly different health insurance coverage among the States instead of uniform coverage.   

In appellate law, jurists must often balance competing principles.  Sometimes, they err to one side or the other.  Roberts may fairly be criticized in this case, but not for being unreasonable.  Moreover, the Chief Justice deserves praise for his use of legal reasoning through which he gained some remarkable victories for conservatism and federalism.