Dan Balz writes in
The Washington Post:
Chief Justice John G. Roberts Jr. delivered more than a historic ruling with
his opinion upholding the constitutionality of the
Affordable Care Act. Deliberately or not, he sent a message to politicians about
the importance of protecting the vitality and reputation of public
institutions.
That’s a message badly needed in Washington and nowhere more so than in the
Capitol building that sits across the broad lawn from the Supreme Court.
Congress is an institution designed to represent the people. It has become a
body where too often its members act as if they represent only Republicans or
only Democrats. No wonder so many Americans
hold it in such low regard.
It is useful to remember that, in the run-up to the
health-care ruling, one strong subtext of discussion and
analysis was what a decision striking down
President Obama’s health-care law would do to the court
itself. Would the court, under those circumstances, be vulnerable to the charge
that it had become as politicized as the other branches of government?
Fearing defeat, Democrats were preparing to make the court a target in the
fall election. They were connecting the dots, from the
Bush v. Gore ruling that handed the
presidency to George W. Bush, to the
Citizens United decision that helped unleash a
torrent of big-money contributions in this year’s election cycle (a huge share
of the money going to Republican super PACs), and, finally, to health care and a
decision that would have been seen as toppling the president’s signature
first-term accomplishment.
No Supreme Court is immune from the political currents swirling at any given
time. But the assumption of most Americans is that the court, of the three
branches of government, should be insulated from partisan politics and careful
to protect itself from being seen as aiding or abetting those partisan wars. Its
decisions may offend one side or the other, but its legitimacy should remain
inviolate.
Had a majority of the justices struck down Obamacare, the court — fairly or
unfairly — would have become a bigger issue in the presidential campaign than
usual and in ways that could have been damaging to its authority.
How much the court’s place and reputation entered into Roberts’s thinking may
never be known. Someday, the full story of how he found his way to writing a
majority opinion on the health-care case with the four liberal justices may
become known. Legal and political scholars would love to know how it happened
and have been speculating in the absence of hard information.
The opinion Roberts wrote was, in
the estimation of some legal experts, either tortured or
fiendishly clever in maneuvering toward an outcome that upheld the
constitutionality of the Affordable Care Act while attempting to adhere to
conservative principles aimed at restraining the power of the federal
government.
One can only imagine how Obama, the former constitutional law professor at
the University of Chicago, analyzed the health-care opinion on Thursday and how
he evaluated the motivations of the chief justice who, surprising to some,
handed him a major legal and political victory in the middle of his tight
reelection campaign.
That was all the more intriguing because the president and the chief justice
have had a particularly testy relationship. It began with Obama’s speech
outlining his opposition to Roberts’s nomination in 2005. He said Roberts had
the intellect and temperament to sit on the court but questioned whether he had
the values and heart not to side with the strong over the weak.
Their relationship may have reached its nadir when Obama publicly rebuked
Roberts and the court for the
Citizens United decision as the justices
sat uncomfortably before him in the House chamber
during his 2010 State of the Union address.
Roberts’s detractors believe that he reinterpreted what Congress said in the
legislation to find a legal justification for upholding it — by defining the
individual mandate, the most controversial part of the act, as a tax. For that,
he is taking considerable heat from conservatives. Coincidentally, he handed
GOP presidential candidate Mitt Romney and the Republicans
a new justification to attack Obama for raising taxes.
Roberts said in his opinion that he was not making a judgment about the
wisdom of the policy; he said only that it was constitutionally permissible. He
has thrown the debate over health care back into the political arena for
adjudication in November and perhaps beyond. Those who looked to the court to
redress political grievances over a health-care law that was passed on a
party-line vote have the opportunity to win their case in the court of public
opinion, which is the right place given all its history.
In his act of judicial activism, as some of his critics have described it,
Roberts demonstrated restraint of a different kind — a bow to the political
branches of government to exercise their powers within the broad framework of
the Constitution. If it was judicial activism, it was in the service of
institutional deference.
The ruling was handed down at the close of a week in which
Congress finally approved a transportation bill and a
measure that prevented student-loan interest rates from rising. The actions came
after months of discord and against strict deadlines that would have imposed
hardship on students and transportation workers had Congress not found
agreement.
The passage of the two bills is an exception in an institution that is a
forum more often used to advance partisan agendas or to seek political advantage
in the next election. The public image of Congress is historically low. The
successes of the past few days aren’t likely to do much to enhance its dismal
image in the eyes of the public.
The chief justice helped remind the country that each branch of government
has particular powers, responsibilities and obligations. The legislative branch
is designed for partisan debate — occasionally, angry partisan debate — but,
ultimately, it is there to make laws and solve problems that it alone can solve.
On many big issues, Congress has ducked or deferred, with members hoping that
with the next election, they will be given a mandate — and the majorities
required — to do what they want with minimal compromise.
That the country is polarized is beyond question. Obama has proved to be a
divisive president, despite his insistence that he is open to compromise and
accommodation. Congress reflects and feeds that polarization. As a result, as an
institution, it enjoys little public confidence or respect. Congress has become
an arena not to solve problems, but to avoid solving them. Even Americans with
sharply partisan views find that distasteful.
Congress will get another chance to show leadership after the election, when
a series of fiscal issues come to a head. If, for political reasons, the leaders
choose to postpone some of the hard decisions, they will have to face them in
2013.
On one of the most politically charged cases in years, the chief justice
chose to exercise the leadership that goes with his position. He may have
protected his institution at the same time. The members of Congress have not
done that very often in recent years. That is one lesson they can take away from
the court’s historic ruling.