Published June 28, 2012
In Marbury v. Madison, the watershed Supreme Court case in 1803 that established the basis of judicial review, Chief Justice John Marshall referenced the oath of office that all justices take:
I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.
That oath, with only minor changes, is the same one taken by Supreme Court justices to this day. Thankfully, Chief Justice John Roberts was paying attention when he repeated it.
The individual mandate in the Affordable Care Act aka "ObamaCare" was always, clearly constitutional — so much so that conservatives, recall, were not only the ones who came up with the idea in the first place but generally scoffed at legal challenges when they first raised.
“It’s become just a very partisan battle cry on behalf of an argument which a few years ago was thought to be completely bogus,” said Charles Fried, President Ronald Reagan’s Solicitor General in Supreme Court cases 1985 to 1989.
It’s one thing to not like a law. It’s another to suggest that the highest court in the land should overturn centuries of precedent, not to mention the clear tax and commerce power enshrined by our Founders in the Constitution, in order to serve a partisan political agenda.
In a recent survey conducted by Bloomberg News, 19 of 21 constitutional law scholars — across political affiliations — agreed that the individual mandate in health care reform is constitutional. Thankfully, conservative Chief Justice Roberts joined the majority decision and ruled that, whether he personally likes it or not, Congress has the power to mandate health insurance coverage.
In 2008, over 88 percent of Americans agreed our health care system was in desperate need of reform. President Obama put forward a plan not to create single payer Medicare system for all (as his progressive base, including myself, wanted) but to fix the crisis of runaway costs and 37 million uninsured Americans by bolstering the private insurance market with the individual mandate.
It was not accidental that this centerpiece of his plan originated in conservative think tanks and was supported by, among others, Senator John McCain during his run for president. President Obama went to pains to present a bipartisan solution to our health care crisis.
Republicans? They did an ideological about-face, declared their wrath against the individual mandate and voted in a block against the Affordable Care Act. Conservatives have been trying to use health care reform as a political football ever since.
Chief Justice Roberts’ vote is so striking precisely because it bucks the recent trend of conservatives contorting their own past beliefs and principles to attack President Obama in any way possible.
It’s no coincidence that, today, the very same Republicans who decried Congress wasting taxpayer resources on “witch hunts” when George W. Bush was president have launched a grandiose fishing expedition against Attorney General Eric Holder -- not because of "Fast & Furious," which has long been addressed, but because of some far-fetched conspiracy theory about the Justice Department’s own internal investigation.
To ordinary Americans watching this exchange, it would appear that Republicans are against Congressional committee witch hunts, unless Democrats are the targets, just as Republicans support individual mandate solutions within the private insurance market, unless Democrats propose the idea.
In 2006, Mitt Romney praised the individual mandate as the solution to our nation’s health care challenges. Now, he has joined the rest of his opportunistic party in condemning it.
The American public is getting increasingly sick of conservatives flip-flopping on their supposedly core beliefs simply to try and score points against President Obama. And the Tea Party, which keeps trying to oust any Republican who shows an ounce bipartisanship, isn’t helping.
Fortunately, no matter how increasingly powerful the extreme right of the Republican Party becomes, they cannot oust Chief Justice John Roberts.
I’m not going to say that I wasn’t surprised by today's ruling.
A quarter century ago, 2 out of 3 Americans approved of the job the Supreme Court was doing. Today, less than half of Americans feel the same way -- in no small part because 3 out of 4 Americans believe that the justices’ decisions are sometimes influenced by their political or personal beliefs.
The Roberts' Court leans right and a number of 5-4 decisions along party lines have overturned centuries of precedent to serve partisan aims (see, e.g., Parents v. Seattle, Gonzalez v. Carhart and of course Citizens United).
But look, America, sometimes justice manages to be blind to politics and sometimes, just sometimes, even conservatives on the Court realize that we have a federal government for good reason. And, too, sometimes the Constitution that conservatives love to pay lip service to confers all kinds of legitimate powers to government. It’s a good thing Chief Justice Roberts referred to the Constitution in his decision, and not Twitter.
In Marbury v. Madison, the Court wrote: “The Government of the United States has been emphatically termed a government of laws, and not of men.” Far too often and far more frequently, the five conservative men on the Supreme Court have put politics ahead of the law.
Today, Chief Justice Roberts upheld a vital act of Congress that will bring down our health care costs, improve the quality of our care and make sure 37 million uninsured Americans have access to affordable insurance.
But Chief Justice Roberts also upheld the integrity of the Supreme Court on which he sits. We can only hope that today's ruling is a significant step toward restoring the sort of independent rationalism and truth we so desperately needs. In a country far too blinded by partisanship, justice may not really be blind but hopefully it can see better than the rest of us.