John Roberts: Traitor or genius?

First of a two-part series: Next Sunday: Putting the Affordable Care Act back in the people's court.

Never before has U.S. Supreme Court Chief Justice John Roberts joined the court's four liberals in a 5-4 decision — until now with his vote that preserves the president's Affordable Care Act.

During the oral arguments before the high court last March, it appeared likely that the court would strike it down as an unconstitutional stretching of the Commerce Clause. All five of the conservative justices, including Roberts, were relentless in their questioning of U.S. Solicitor General Donald Verrilli, whose job it was to defend the act.

But today the law stands. How could it have happened? Republicans are in mourning. Conservatives feel betrayed and see Roberts as a traitor. Is the Apocalypse upon us? Take heart. It isn't.

Roberts is conservative, brilliant, ambitious and much concerned with his legacy. He's a chess player who has left us with an encrypted opinion. Our task is to decipher it. Sean Trende helps us crack the code in an essay titled, "The Chief Justice's Gambit."

Trende argues Roberts' majority opinion is nothing short of the clever brilliance employed by Chief Justice John Marshall in the 1803 landmark Marbury v. Madison decision that established the precedent for judicial review. Marshall's decision found that Marbury did have a right to his commission to become a justice of the peace, which the Jefferson administration had refused to grant, but that the provision of the Judiciary Act that empowered the Supreme Court to issue the writ of mandamus that Marbury sought, and never received, was unconstitutional.

This enabled Jefferson to win the case, but more importantly, it established the court's power of judicial review.

Trende argues powerfully that Roberts is no less clever and just as skilled as Marshall in his opinion regarding the Affordable Care Act.

Most court watchers had expected that the fate of the centerpiece of the law, the individual mandate, would be determined on the basis of whether it was a legitimate extension of the authority contained in the Constitution's Commerce Clause. Basically the question was whether the federal government could force individuals to enter commerce, that is, purchase health insurance, or penalize them if they did not. But the mandate's constitutionality might be upheld in another way.

In oral arguments last March before the high court, Verrilli also argued that the individual mandate was constitutional based on the Constitution's tax authority. In other words, Verrilli argued that the penalty imposed on an individual who refused to purchase health insurance was simply a tax, and that such a tax was plainly constitutional.

Roberts, seeing the yawning opening in front of him, joined the four liberal justices and wrote the majority opinion upholding the individual mandate based on the tax argument. Thus, the law stands.

But Roberts also joined the four conservative justices and argued that the mandate could not be justified under the Commerce Clause. Having ruled the mandate constitutional under the tax authority, Roberts did not need to address the question of whether it was constitutional under the Commerce Clause. But he did. Thus, the scope of the Commerce Clause has been significantly narrowed. And that is a doctrinal shift that may well become a treasure trove of court rulings for conservatives down the road.

And there's more. The second major issue the court resolved involved the question of whether the federal government had the constitutional authority under the Constitution's Spending Clause to attach strings to legislation without limit. The Affordable Care Act contains a gigantic expansion of the federal-state Medicaid program. Congress drafted it so that if a state chose not to participate in the expansion of the program, it would lose all of its federal Medicaid funding.

Roberts and six other justices struck down this draconian provision, thus permitting any state to forgo the expansion and still retain its Medicaid funding. Thus, the Roberts court has set a precedent that imposes significant limits on Congress' authority to attach conditions to legislation. This doctrinal precedent will likely bear much fruit for conservatives in future decisions.

Also, Roberts has brilliantly shielded the court from the hyper partisanship that would certainly have occurred had the court driven a stake into the act's heart. Accordingly, he has strengthened the court's conservative hand as it is about to consider multiple high-stakes cases involving affirmative action, campaign finance and Section 5 of the Voting Rights Act.

By properly voting to save the act, Roberts has given the president a victory for now, but has also cornered him. The president has praised the court's decision, which makes clear that the individual mandate will be enforced by a new middle-class tax. And that's something the president has previously and repeatedly said he opposes. In addition, the president has consistently maintained that mandate's penalty is not a tax. But the president's solicitor general and now the Supreme Court have said it is just that — a tax.

Roberts has hoisted the president on his own petard, and left the ultimate fate of the Affordable Care Act where it belongs — in the hands of the voters. Roberts opined, "The Court does not express any opinion on the wisdom of the Affordable Care Act. That judgment is reserved to the people."

Just as Chief Justice Marshall outmaneuvered President Thomas Jefferson, Chief Justice Roberts has outfoxed President Barack Obama.

Next Sunday: Putting the Affordable Care Act back in the people's court.

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