Roberts’ Switch In Time

by on Jun.28, 2012, under general

Earlier today the PPACA – more commonly known as “Obamacare” – was upheld by the Roberts Court in a ruling which surprised many people (I was not surprised, but only because I had listened to some very smart people forecast what came to pass).

At the risk of speaking out of turn and depth, I would like to suggest that what we have witnessed today is “a switch in time that saved nine” for the 21st century.

President Obama has not (publicly) threatened any sort of court packing scheme as FDR did. But he has been running against the court ever since his 2010 State of the Union in the aftermath of Citizens United. As Adam Winkler at SCOTUSBlog noted, the Court now features a 44% approval rating after having been the most consistently highly regarded arm of the federal government in decades.

When you combine this context with:

I would like to propose the following analysis:

Roberts originally sided with Kennedy, Alito, Scalia, and Thomas in striking down at least part of the PPACA. However, at some point relatively recently he realized that if the PPACA was struck down it would mean that his Court could be cast as the most conservative and activist in history, allowing Obama to run strongly against it, and allowing his place (and Court) to be denigrated in history as the Lochner era now is.

So, as Adam Winkler has written, Roberts made a deal with the devil. He switched sides and supported the PPACA. But he did so in the most limited and bizarre way possible, using a rationale (mandate as tax) abandoned by the government early on, and one most easily framed as something no one likes (taxes). He slighted the Commerce clause, potentially weakening the foundation of all social legislation.

Most importantly: he gave himself credibility with a lay audience as a centrist, bipartisan, “balls and strikes” justice, one willing to go against the grain for what he thought the law to be.

Of course, Roberts is nothing of the sort (and you only need to read his past opinions to see that). He now, however, can be credibly seen to be that kind of Chief Justice. This decision will insulate him from charges of activism that Obama et al may wish to make – and even to run on – even while he prepares, this fall, to likely strike down affirmative action and a whole host of other causes.

The more I think about it the more I wonder if this outcome wasn’t one of the worst possible for progressives.

You get a flawed bill that you may or may not have liked anyway, weakened further by the Medicaid provisions (as I understand the Court to have ruled that the states need not expand Medicaid). In any case, you do not get to blow up PPACA and start over (I am not saying this is necessarily the right option, merely that it is now certainly a foreclosed option).

You do get Obamacare – moreover, Obamacare reframed as a tax – hung around Obama’s neck for the fall.

You do not get to run against a conservative activist court, potentially for a long time, as this case provides Roberts credibility to be the “balls and strikes” justice he most assuredly isn’t.

This is a “switch in time” that preserves the Roberts’ Court’s political legitimacy. And by executing it he’s revealed himself to not only be a committed conservative, but a wily one too, willing to play a much more influential long game. That is a terrifying specter for any progressive who cares about the Court to behold.

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