The Majority Opinion that Became a Dissent
If you had told me before the day started that John Roberts and Anthony Kennedy would have penned differing opinions on the Obamacare case, and that I’d be siding with the latter’s opinion, I would have said that you were nuts. Alas, it appears that John Roberts is the new Anthony Kennedy.
Ed Whelan has speculated that Chief Justice Roberts changed his vote at the last minute, and therefore the dissenting opinion was originally the majority opinion. He has a follow-up post that posits another theory supporting that notion, which also explains how that could be logistically possible. Having now fully digested the dissenting opinion, I am just about 99 percent certain that John Roberts did indeed change his vote, and that the dissenting opinion was the majority opinion until the Chief Justice changed his mind.
Frankly, the dissent just doesn’t read like a dissent at all. As Whelan points out, the dissenting opinion repeatedly alludes to Justice Ginsburg’s opinion as the dissent. In fact, the dissenters barely alludes to the Chief Justice’s opinion at all until the very end. The final couple of pages are a scathing attack on the majority’s opinion, heretofore unmentioned. It certainly seems like the dissenting Justices felt jilted by the Chief Justice, thus the unusually harsh rhetoric of the final few paragraphs of the dissent. Another sign that the dissenters were in the majority comes on the second page:
Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.
That clear principle carries the day here.
But that principle didn’t carry the day in the end.
Much of the dissent echoes what Roberts wrote in his decision. That’s because the dissenters were on the same side as Roberts on all but the issue of the taxing power. And it is here where the point out the absurdity of the Court’s decision.
But we cannot rewrite the statute to be what it is not. “‘“[A]l- though this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
Later on in the dissent, the four assert that “to say the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”
The dissenters also point out the absurdity of calling it a tax in order to uphold the mandate, but not a tax when ruling on the Anti-Injunction Act.
What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.
Perhaps John Roberts spent some time at Hogwarts.
The dissenters also smack down the government and Roberts’ creative solution in dealing with Medicaid expansion, and a provision that a 7-2 majority to be found unconstitutional as applied under ACA.
We should not accept the Government’s invitation to attempt to solve a constitutional problem by rewriting the Medicaid Expansion so as to allow States that reject it to retain their pre-existing Medicaid funds. Worse, the
Government’s remedy, now adopted by the Court, takes the ACA and this Nation in a new direction and charts a course for federalism that the Court, not the Congress, has chosen; but under the Constitution, that power and authority do not rest with this Court.
So why would Roberts suddenly get cold feet? I believe the answer lies early on in the Chief Justsice’s opinion, on pages 5-6 where he discusses deference to the Legislature. It has been widely accepted that the Chief Justice has a conservative temperament (not necessarily referring to ideology here). He certainly does not share Clarence Thomas’s desire to overturn decades of jurisprudence (further evidence of which is demonstrated in his own two page dissent, where he re-iterates his voice in the wilderness approach to the Commerce Clause). He is also milder in his approach than Alito and Scalia, and on this issue, even Anthony Kennedy.
I believe that Roberts saw the Court heading down a path where it was set to strike down the entire Affordable Care Act, and not just the individual mandate. That was a bridge too far, therefore he devised an out where he could side with the Court’s conservatives on the commerce clause issues, but also keep the health care act alive.
In making a decision aimed at having the Court avoid entering the partisan fray, Chief Justice Roberts only managed to get the Court involved even deeper into the political morass. The dissenting opinion forcefully points out the folly of the Chief Justice’s approach, and I can’t help but think that this is a rather pointed, public rebuke of the Justice. I’ll quote extensively from the closing lines of the dissent, because it happens to be completely on target.
The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.
The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an unaccustomed strain upon the Union.
Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is to be introduced at all, it should be by Congress, not by the Judiciary. The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.
The coda to the dissent is even starker, and again leaves the impression that the four dissenting justices were essentially left at the altar by the Chief Justice.
The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.
The disappointment just drips right off the page. It’s a feeling shared by many readers.