Below is my column in The Hill newspaper on critical cases facing Chief Justice John Roberts this term as his impact as the new swing vote on the Court becomes more clear. In the oral arguments for Whole Woman’s Health v. Hellerstedt, Chief Justice Roberts appeared to be following his prior position in favor of state laws imposing conditions on abortion services. However, in that case and the recently accepted Obamacare appeal, Roberts will be exercising his swing vote while carrying a fair amount of baggage from earlier decisions.
Here is the column:
One of my favorite stories about Supreme Court Justice Oliver Wendell Holmes is from one of his train trips to Washington. Holmes forgot his ticket but the train conductor reassured him, “Do not worry about your ticket. We all know who you are. When you get to your destination, you can find it and just mail it to us.” Holmes responded, “My dear man, the problem is not my ticket. The problem is, where am I going?”
Chief Justice John Roberts may have the same uncertainty this week as he finds himself on track to two decisions that will define him and the court. Once heralded as a reliable conservative, Roberts became the swing vote with the retirement of Justice Anthony Kennedy. Now conservatives are unsure if Roberts will deliver or deflect a coup de grâce with decisions on ObamaCare and abortion. In both cases, he will grapple with his previous views that would push him to vote for decisions with sweeping impacts. For a chief justice who gets sticker shock at such moments, Roberts may find himself evading his prior self in shaping the future court.
Affordable Care Act
The Supreme Court earlier this week accepted an appeal from various states that are controlled by Democrats who seek the reversal of lower courts striking down the individual mandate provision of the Affordable Care Act. In 2012, Roberts saved ObamaCare as the fifth vote in the case of National Federation of Independent Business v. Kathleen Sebelius. In my view, it was one of his weakest opinions as chief justice.
Roberts sided with the conservative justices that requiring individuals to buy insurance was a flagrant violation of federalism guarantees, a view I shared. But in what read like a last minute addition, he voted with the four liberal justices in declaring that none of that matters because he viewed the individual mandate as a tax. It was a surprising turn, since both sides had denied that this was a tax. But by declaring the individual mandate an exercise of the taxing authority of Congress, Roberts saved the law. He insisted the individual mandate was the thumping heart of ObamaCare, which could not survive without its tax revenue from the healthy young citizens who would pay more into the system than they took out. Roberts wrote that “the individual mandate was Congress’s solution” to the existential problems associated with a national health care system. Likewise, the liberal justices joined Roberts in saying that, without the individual mandate, the other parts of the ACA “alone will not work.”
His decision, refashioning the mandate as a tax, appeared artificial and opportunistic to many of us. It also sowed the seeds of its own destruction by not just resting the survival of ObamaCare on the existence of the tax but by insisting that the law could not survive without it. Congress called his bluff by zeroing out the tax, which was the very thing that Roberts had said was needed to sustain ObamaCare as a constitutional matter.
The case is now headed to Roberts again. The lower courts had quoted him and relied on his reasoning to declare the provision unconstitutional. The district court struck down the entire law based on his 2012 decision. The appellate court left open the possibility that the entire law could be struck down but remanded that question back to the district court.
Roberts is well known for resisting dramatic social or political changes in opinions. However, he will now be faced with a determined protagonist in himself. In order to save ObamaCare again, he will have to brush aside his own analysis from 2012, fueling objections that the 2012 rationale was a convenient and transparent ruse to avoid the need to strike down the law. The case of California v. Texas presents the question in the sharpest relief. The tax fallacy is now evident, but Roberts could still declare “long live ObamaCare” based on a federal tax that brings in no revenue.
Roe v. Wade
The Supreme Court this week will also return again to the long simmering debate over the ability of states to limit abortions or abortion services. As with critics of ObamaCare, pro-life advocates have long viewed Roberts as, at best, a fair weather friend and, at worst, a furtive foe on the issue of abortion. The case of June Medical Services v. Stephen Russo will again be forced into the open on a key constitutional question.
There is not a lot of room left to avoiding declaring whether a state like Louisiana can impose conditions on abortion services, such as requiring that physicians have admitting privileges at a local hospital. What is most striking about the case is that it involves very similar issues as in Whole Woman’s Health v. John Hellerstedt in 2016, but it will be argued to a different court. Roberts voted in the minority when there was no chance the Supreme Court would open up abortion to state limitations.
Kennedy, a critical swing vote for pro-choice advocates, was replaced by Justice Brett Kavanaugh, who was controversial because of his perceived hostility toward the foundation of Roe v. Wade. The vote was five to three because Justice Antonin Scalia had passed and Justice Neil Gorsuch had not yet been confirmed. With Scalia or Gorsuch, the vote might have been five to four. With Kavanaugh, however, the result would flip.
The Louisiana case presents that same type of restrictions as the Texas case and comes from the same circuit. In the Texas case, the fear was that limitations would dramatically reduce the number of abortion clinics. In the dissent that Roberts joined, Justice Samuel Alito rejected claims of a causal link between such limitations and the reduction of the number of clinics. Critics of the Louisiana law argue that same causal link, with a bigger potential to cut the number of clinics in the state to one.
Roberts will have to vote on a Supreme Court that can clearly deliver a victory for states’ rights and pro-life advocates. There are technical “off ramps” with both cases, but he will have to work hard to evade this clear vote. Clarity is something that Roberts likely does not relish in either area. On both ObamaCare and abortion, he would have to reject his own prior analysis to vote against the position of his conservative colleagues. So conservatives may not like the new destination of the chief justice if he decides to jump the track on both of his prior opinions.
Jonathan Turley is the Shapiro Professor of Law with George Washington University. He served as lead counsel for the House of Representatives in litigation over the Affordable Care Act. He is on Twitter @JonathanTurley.
Roberts was a convoluted mess on the first ACA case yet he was in keeping with one of the traditional rules of power – Power abhors zero sum games. Same for Roe where the court literally split the baby (or the fetus as the case may be) letting the court’s enforce some restrictions in the last trimester but freewheeling until then. Tough decisions may make bad law, as they say, but pusillanimous judges eager for country club approval make the worst law.
With Obama’s free wheeling use of NSA mega data, many believe he was compromised and forced to vote as he did.
Setting budget reconciliation aside, which was clearly a flawed argument, I felt Obamacare was unconstitutional on at least four, possibly five grounds, the mandate simply being the most obvious. His inability to logically parse the verbiage, as semantics employed – for the purpose of challenge the mandate is a “tax,” in all other instances, a “penalty” – words to that effect – left all to wonder, does Roberts even belong on the Supreme Court? In my mind it was a clearly political decision. And historically, a rather sad moment for the Court. It’s not a decision that I feel Roberts will ever successfully walk back or retreat from, rather one most certain to indefinitely mar his legacy.
What I find interesting regarding Kavanaugh though is his “perceived hostility.” Since there is no evidence of such hostility I must then assume such words more clearly translate to “incorruptible.” It might be more accurate to say that Democrats view Kavanaugh as constitutionally incorruptible. Which is why Schumer opted to politically threaten the Court; can you imagine, a lowly congressman threatening apolitical justices? With the full weight of Congress, the “deep state,” the “six ways to Sunday” of our intelligence services? Schumer is saying rule our was OR ELSE!
Has anybody seen Seth Rich? Hell no!
There is no law requiring a judge to vote in what some perceive to be the same direction each time. This freedom does more good than harm as they can rectify mistakes but it also follows their method of being seated.
President Nominates. Senate Confirms. Those are the only two requirements. There are no others. Age, Citizenship, gender, education etc. are not on the list of requirements. Nomination and Confirmation that’s it.
If the left insists on their shenanigans there is nothing to prevent a candidate nominee from going along with their nonsense then voting the other way. And that would be fitting legacy to the replacement of RBG.
Everyone knows that no one can be against any of the things the Left favors! If they are it is ok to threaten them with violence.
Chief Justice John Roberts impeached himself long ago. Obamacare is not “…general Welfare…” and is distinctly specific or individual welfare. Congress may not tax for specific or individual welfare and Obamacare is unconstitutional. Chief Justice John Roberts commingled the definitions of the words “state” and “federal” to approve the unconstitutional “exchanges” which are critical to Obamacare. Additionally, Congress may regulate only the value of money, the flow of commerce and land and naval Forces. The 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute. The entire American welfare state is unconstitutional and Chief Justice John Roberts knows it well. Chief Justice Roberts, when do the American people get their rights, freedoms, privileges and immunities back from the Supreme Court?
Chief Justice, there are no two ways about the facts, the truth and the Constitution. People who speak the English language do not need an interpreter. Chief Justice John Roberts egregiously failed in his duty to the Constitution as considered by Alexander Hamilton.
To wit,
“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
AMEN!
Robert’s Rules of Order. 1. Don’t change dicks in the middle of a screw. Vote for Nixon in ’72!
To this day the best bumper sticker I’ve ever seen. But you have it backwards.”Vote for Nixon in 72, don’t change dicks in the middle of a screw”
Republican appointments to the Court over the last sixty years have run the gamut from disappointing to awful, with the exceptions of Rehnquist, Scalia, Thomas, and Alito. Democratic appointments have been uniformly awful with the exception of Byron White. Roberts is a puzzle. I suspect his motor is preserving the social unassailability of the judiciary, which is simply a bad cause in this day and age.
What we might benefit from is an Article V convention cleaning up the horrid case law of the last 80 years. Short of that, the best we could ever hope for would be a court which would sweep away that case law, referring to stare decisis only when decisions would cause extraordinary social disruption (i.e. Social Security, Medicare, Medicaid, and the Federal Reserve System would be retained. Everything else goes). A restoration of the Republic requires that Congress, the administrative agencies, and the appellate courts be put in their place and fear to do aught but stay in their lane. Fussing over abortion law belongs in state legislatures and nowhere else.
I thought the objection by Kennedy was that an individual would be sanctioned if they chose not to buy the product. Therefore, Congress had no authority to pass such a law. Roberts got around this by stating it was a tax. While there may no longer be a tax, there is also no longer a sanction.
I suppose Congress could further stipulate that one is not required to buy the coverage. But it is an odd “requirement” indeed that says you can do what you’d like without penalty.
If one is so obsessive that the word “requirement” in the law causes them sleepless nights, then for their benefit Roberts can state that we have a tax that is zero.
Roberts will screw Americans in favor of the Leftist party line…he’s proven that more than once.
JT, let me help you out – you need it.
Finding the mandate constitutional does in any way translate into striking down a legally passed act of Congress signed by the president, because they later removed that portion of the Law. Finding otherwise would constitute legislating from the bench, and we know how much the court conservatives hate – choke, gag, cough, cough, – that!
If there is a problem with the legislation that does not in some other way violate the constitutional rights of a party,the structural defects are for the congress to work out, not the judges. The fact that the GOP led branches of the Congress lack both balls and brains to do this is not the court’s problem, though that’s the expected pay off for stealing the court’s deciding seat.
Turley writing about a “collision course with himself” about Roberts, is funny considering how he showed the world how hypocritical he was about impeachment.
JT, let me help you out – you need it.
He doesn’t need anything from you and you don’t know what you’re talking about.
JT, let me help you out – you need it.
This is the point where rational people do a bit of self-reflection and consider a respected constitutional scholar such as Professor Turley might have a better understanding of the legislative process and the law than themselves. That point has been lost on you since you arrived on this blog; especially given your failure to self-correct even once.
Ramming a piece of legislation through Congress on party line votes, one that the Speaker admits needs to be passed to find out what’s in it, should be your first clue that the law might not age well under stress. That however is the progressive way of legislating. Throw $hit up against the wall and rely on the courts to act as unelected legislators and do their job for them. This law needed the funding mechanism to work.
If there is a problem with the legislation that does not in some other way violate the constitutional rights of a party,the structural defects are for the congress to work out, not the judges.
That’s why Robert’s should have reviewed the law as written, ruled that the penalty was unconstitutional (structural defect), and struck down the law. His job is not to fix it to make it constitutional, especially in light of the fact neither side was arguing the penalty was actually a tax.
The law on abortions being ruled on, does not change Roe v. Wade. It does, however, protect women from having abortions that cause medical problems that cannot be handled in the clinic. What this law does, is require that the abortion provider be admitted to a hospital that is within 30 miles from the clinic. This will help to save women’s lives in the event something goes wrong during the abortion procedure. Why all the hand wringing that this will destroy women’t rights to abortions…it does not.
If Schumer and the Democrats have a problem with such laws, they are sending a message that abortions at all costs, and with no safeguards are the only way.
To me, the safety of the women undergoing an abortion is paramount.
What this law does, is require that the abortion provider be admitted to a hospital that is within 30 miles from the clinic. This will help to save women’s lives in the event something goes wrong during the abortion procedure.
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The problem is that SCOTUS has already ruled that a Texas law that had the same provisions was unconstitutional in part because there the evidence showed it would not save lives or make abortion safer.
The problem is that SCOTUS has already ruled that a Texas law…
Not a problem at all. Louisiana is not Texas and this is not 2016.
Call me crazy, but I think somebody has the goods on Roberts. I mean think about it. If you were a “Power That Be”, wouldn’t you want somebody in office that you could control. Somebody pointed out once that somebody surely had to know about Dennis Hastert’s gay activity and yet Hastert became Speaker of the House – in line for the Presidency if there were a few deaths.
Was Hastert being kept “in line”? I wonder the same about Roberts sometimes.
Squeeky Fromm
Girl Reporter
The goods on Roberts…
Perhaps when you adopt you should make careful sure that all the i’s are dotted and every t is crossed… 🇮🇪
I have heard about that. Aren’t those kids about grown by now???
I mean I find it believable that Epstein was a Mossad asset and got the goods on bunches of powerful people. Maybe Roberts fell into a honeypot somewhere??? Or a rent-boi???
Squeeky Fromm
Girl Reporter
I think his children might be 17 and 19 by now.
Well, with Mr. Schumer’s recent public threat to judges, which was uttered so casually that it appears to be well practiced… there is a certain off-taste in this all.
Add to that the ‘clever’ reasoning habit which usually is a sign of corruption and it does look indeed as if the court is compromised.
Somebody pointed out once that somebody surely had to know about Dennis Hastert’s gay activity and yet Hastert became Speaker of the House
Nobody ‘had’ to know anything.
The people who knew about it consisted of a small corps of quondam members of the wrestling team he coached, and some of them used it to blackmail him when it was apparent his pockets had gotten deep from graft after he left office. One other person who knew something secondhand was one Jolene Burdge, who appears to have blamed Hastert for her brother’s homosexuality. Burdge contacted media outlets in northern Illinois on more than one occasion over the years and they blew her off. She didn’t want money out of Hastert and didn’t have a cause of action; she just wanted him ruined.
Well his decision, which essentially supported the Obama contention that for the purpose of legal challenge the penalty is a “tax,” and in all other instances, a “penalty,” was certainly odd. Because it would seem to me that regardless of the semantics or verbiage employed the mandate was clearly unconstitutional. Roberts said as much and then reversed his own decision; why? So I had similar thoughts myself.