By Jules Witcover
1:16 PM PDT, July 2, 2012
Chief Justice John Roberts, in partnering with the Supreme Court's four liberal judges to preserve the bulk of President Obama's health care act, not only handed Mr. Obama a victory. He also rescued himself and the court from a shroud of partisanship built up from earlier decisions.
Mr. Roberts' surprise role in salvaging the controversial individual mandate financing scheme, and particularly his legal justification for so voting, demonstrated a thoughtful and ideology-free leadership the court needed. After its 2010 Citizens United decision allowing unlimited corporate giving in political campaigns, the five-member conservative Republican bloc seemed set in concrete on issues of political significance.
But Mr. Roberts this time took note that, regardless of what a judge thought of the merits of a law, an 1895 precedent instructed that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." And that was what he did, finding a route to do so that previously had been all but dismissed.
The most advertised justification for the individual mandate was using the constitutional clause authorizing government regulation of commerce. But it failed when a majority including Mr. Roberts ruled many Americans would not be regulated, but compelled, to buy health insurance. Then he seized on Congress' clear power to tax as the grounds to justify the scheme, and the four liberals readily agreed.
While preserving what the Republicans love to call "Obamacare," the Roberts-led majority handed its critics a stronger campaign-year battle cry. They can now claim it is what the Democratic administration had insisted it was not — another big tax on all Americans.
In showing the way the court could avoid throwing out the health care law, Mr. Roberts put on his chief justice's hat. He acted on his confirmation promise to function in the manner of a baseball referee — judging on the legality of a law only, not trying to evaluate the desirability or lack thereof of a particular issue before him. That, he said, was the job of the elected legislative branch.
In his most telling observation, Mr. Roberts said, "those decisions are entrusted to our nation's elected leaders, who can be thrown out of office if people disagree with them. It is not our job to protect the people from the consequences of their political choices."
The comment was immediately seized by prospective GOP nominee Mitt Romney, arguing the first step was to get rid of President Obama in November. "What the court did not do on its last day in session," he said, "I will do on my first day if elected President of the United States. And that is, I will act to repeal Obamacare."
As for Mr. Roberts, in the clutch he accepted the mantle of leader of the court, not of its conservative bloc, in crafting a means to salvage the work of Congress, which as he said was its business, not his. Unspoken was an obvious awareness as chief justice that the court itself needed a demonstration of nonpartisanship, after the ruling on unlimited corporate giving and its 5-4 decision in Bush v. Gore, whose controversial outcome still clings in contentious memory.
A collective sigh of relief came from the Obama White House when its prime first-term legislative achievement escaped the Supreme Court guillotine. But Mr. Roberts' message was also a pointed reminder that there remains an avenue for a subsequent beheading in the defeat of the incumbent and the election of a ready and willing executioner in Mr. Romney.
As a midwife of similar health care reform as governor of Massachusetts, he was compromised in the Republican primaries in claiming that role. Since then, however, Mr. Romney and his super PAC backers have been are raking in heavy contributions from party faithful coming around to accepting him as the best remaining available slayer of the "Obamacare" dragon.
Determined to use the stalled economy as his winning formula in November, Mr. Romney has taken up the cry that the president's heath care reform act "is a job killer." The allegation is an acknowledgment that for all the last week's furor, the election may well still swing on whether Mr. Obama can show signs of America getting back to work by Election Day.
Jules Witcover is a syndicated columnist and former long-time writer for The Baltimore Sun. His latest book is "Joe Biden: A Life of Trial and Redemption" (William Morrow). His email is email@example.com.
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