Supreme surprise

Supreme surprise

The real reason conservative Chief Justice John Roberts saved Obamacare

By Barry Gordon 07/12/2012

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In the wake of the US Supreme Court’s recent decision to uphold the Affordable Care Act, including its requirement that everyone purchase health insurance, there has been a great deal of speculation about what led Chief Justice John Roberts to write a majority opinion that sided with the four liberal justices. Some of that speculation went to obvious extremes, with a few commentators comparing the conservative Roberts to Earl Warren, the supposedly conservative governor of California who, as Chief Justice, presided over the most liberal Supreme Court in history.  Did this decision foreshadow the beginnings of a new liberalism on the court, led by a suddenly converted Roberts?


A common cable-news scenario was that Roberts was unwilling to be ruled by ideology and made the only decision that his legal reasoning could bring him to.  By doing so, he demonstrated an unexpected and rarely seen independent streak, unlike the three musketeers — Antonin Scalia, Samuel Alito and Clarence Thomas — who almost always march in lockstep.


A third theory maintained that Roberts was concerned about the legitimacy of the court in the wake of some very controversial 5-4 decisions, such as Bush v. Gore and Citizens United. Could the court afford yet another controversial, seemingly partisan decision, or was the danger too great that the institution designed to be the last bastion of independence would lose all credibility? Three days before, he had joined the majority in striking down most of Arizona’s immigration law, on the grounds that the issue of immigration was almost exclusively within the purview of the federal government. Again, he sided with the liberal side of the court (Justice Elena Kagan recused herself, and this time Justice Anthony Kennedy was with the majority). So is this more evidence that we’re seeing a “new” Justice Roberts?


Not necessarily.


In law school, I was introduced to the philosophy of legal realism. In brief, it asserts that the law is not just a set of rules and principles that can be applied almost mechanically by impartial and wholly objective judges to resolve any legal question. Instead, it recognizes that no judge is immune to the political, social and moral influences that make up their own value systems. If we look at Roberts’ recent decisions in that light, they begin to make more sense.


Unlike Scalia and Thomas, Roberts comes from an extensive background as a practicing private attorney and, as such, has often represented the interests of corporate America, such as coal companies, health insurance HMOs and others. According to the Alliance for Justice, the Roberts court has been the friendliest to corporations since before the New Deal, shielding companies from liability, striking down environmental and anti-trust regulations, prohibiting suits based on wage discrimination, as in the Lily Ledbetter case (a ruling ultimately reversed through congressional action), and, of course, furthering the idea that, as Mitt Romney so eloquently put it, “Corporations are people, my friends.” It was this thinking that, in 2010, led directly to the court’s opinion in the now-infamous Citizens United case.


The results in the immigration and health care cases may not be quite as shocking when viewed through Roberts’ pro-business prism. But, you may ask, wasn’t big business entirely against the health care law? Wouldn’t the most pro-business decision have been to strike down the entire law? The simple answer is yes. But this is where the third scenario discussed above may well have come into play.


I believe that the “legitimacy” argument held great weight with Roberts. He did not want to see the court lose any more credibility with the public than it already had. It may well be that a decision to get rid of the whole health care law would have been met with public approval, but he was clearly not willing to take that chance. So, in his mind, there were only two options:  Uphold the law with or without the individual mandate.


That’s where his pro-business values kicked in. Ask yourself what would happen to the law without the individual mandate. One practical effect would be that the insurance companies would be stuck with the bill for treating all those folks with pre-existing conditions — a cost that was meant to be offset by the premiums of those millions  who would be forced to join the ranks of the insured. The individual mandate was the “quo” to the insurance companies for their “quid” of agreeing to insure those who were previously kicked out of the system. To have one without the other would be untenable and a huge burden on the insurance industry.


Hence, Roberts was left with only one realistic option — find a way, by hook or crook, to support the mandate.  And he did.


The immigration case can be explained in the same way. Imagine 50 different immigration laws replacing or supplementing one federal system. If Roberts had sided with the conservatives, there would have been a 4-4 split, and every state could have moved down the very slippery slope of creating its own scheme. I suggest that the only group that would have suffered, other than the undocumented immigrants themselves, would be employers, especially multi-state employers, who would be subject to different rules for different locations. The truth is that most businesses don’t mind illegal immigration, because it provides them with cheap labor. It even lowers the cost of non-immigrant labor by reducing the available supply of jobs. So, again, siding with the liberals here made good business sense.
Naturally, I can’t read Roberts’s mind, and I could be completely wrong. But I think my theory makes at least as much sense as a sudden “liberal” conversion or a rigid application of the rules with no thought as to their practical impact. Judges are human beings in the end, with their own beliefs and values. If Roberts someday sides with the little guy against corporate interests, then I’ll be surprised.


Barry Gordon is the co-host of “City Beat” and is an adjunct professor at Cal State LA.

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