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Blogs

Obamacare and the Supreme Court: Partisan goose for the partisan gander

3 July 2012

3:15 PM

3 July 2012

3:15 PM

Like the French Revolution it remains much too soon to say what the consequences of the United States Supreme Court’s decision to uphold Obamacare will be. Except this: defeat would surely have been a catastrophe for Mr Obama. The more one considers John Roberts’ pivotal argument, however, the more it seems as cunning as it is undoubtedly neat. There is something for everyone in his judgement and something for everyone to fear too.

Roberts, who appears to have changed his mind, produced an elegant solution: the federal government lacks the power to force citizens to purchase health insurance but it may tax them if they don’t. So Obamacare survives and American liberals (not to be confused with, you know, proper liberals) may postpose their jihad against the court.

The mere threat of that war, however, appears to have spooked the Chief Justice. Amidst talk of a judicial ‘coup’ Roberts bowed to the legislative and executive branches of government. Perhaps this is as it should be. But Will Wilkinson puts it well:

‘By now I think we all realise that “judicial activism” really means “a decision I don’t like” and that “crisis of legitimacy” really means “a series of decisions I don’t like”. Thus, all that was required to avert a looming “crisis of legitimacy” was to uphold Obamacare, for whatever reason, and Mr Roberts seemed to have known it.’

Quite. For that matter, I’m not sure why it is considered mildly obscene for the court to drift right when this movement might sensibly be considered a reaction to the long decades of liberal dominance on the Supreme Court. Sauce for the partisan goose is sauce for the partisan gander otherwise two party politics must fail. It is myopic to pretend that the court is not a political body or to deny that it has *always* been a political institution. (Again, this is true whichever side is believed to hold the upper-hand at SCOTUS).

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Still, it was about time someone at least tried to clip the Commerce Clause’s wings. So two and a half cheers for that. Until very recently this was a (mildly) ‘nutty’ libertarian preoccupation. Roberts has at least sketched the outline of a map upon which one can see fresh limits placed upon the Federal government. That’s no outrage even if folk such as Jeffrey Toobin imply it should be.

Then again, that is plainly contingent upon future court decisions. And those, like this one, will be considered within a given political context. Roberts may have blinked – conservatives certainly seem to think so – but if he did that’s because Obamacare was the administration’s flagship legislative achievement. To throw it out completely would have jeopardised the court’s legitimacy. Roberts plainly does not *approve* of Obamacare but he found a way of ruling that its most controversial provision could be considered constitutional.

Like it or not this was an example of ‘judicial restraint’. (Note, mind you, that votes in favour of the bill are presented as rational; those against it as ideological excess.) But by voting against his own preferences, Roberts can present himself as the uninterested umpire calling balls and strikes even when or though Supreme Court justices really aren’t much like baseball umpires at all.

Roberts’ desire to reinterpret the mandate as a tax, of course, also acknowledges that, if it wishes to, the Federal government can usually get around inconvenient constitutional obstacles. This has always been the case, for sure, but Roberts’ ruling also makes clear the limits to constitution-based judicial obstruction. This, depending upon your perspective, is a grand or sad thing but it’s there nonetheless.

What about the politics? The peculiarity of this brouhaha is that most Americans broadly support the Affordable Care Acts’ ends while a plurality also opposes its means. This in turn means health care remains a troublesome issue for both parties. Democrats must defend an unpopular bill yet Republicans still have no plausible alternative. It is all very well to run a campaign pledging to repeal Obamacare; quite another to have something with which to replace it that still manages to cover the presently uninsured and fix America’s broken, chaotic, ludicrously-expensive healthcare system.

As Dave Wegel points out:

‘Two things are true about the conservative movement, Romney, and health care. One: The activists don’t trust him. Two: They will correct this by bending him to their will.’

Obamacare may be unpopular but at least Obama has the opportunity to make an honest case for it. Romney, trapped between his record and grassroots conservatives, is not so fortunate.

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