The Political John Roberts
The Chief Justice again rewrites ObamaCare in order to save it.
ENLARGE
Chief Justice John Roberts in 2014.
Photo:
Nati Harnik/Associated Press
The black-letter language of ObamaCare limits insurance subsidies to “an Exchange established by the State.” But the Democrats who wrote the bill in 2010 never imagined that 36 states would refuse to participate. So the White House through the IRS wrote a regulation that also opened the subsidy spigots to exchanges established by the federal government.
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Chief Justice Roberts has now become a co-conspirator in this executive law-making. With the verve of a legislator, he has effectively amended the statute to read “established by the State—or by the way the Federal Government.” His opinion—joined by the four liberal Justices and Anthony Kennedy—is all the more startling because it goes beyond normal deference to regulators.Chief Justice Roberts concedes that the challengers’ arguments “about the plain meaning” of the law “are strong.” But then he writes that Congress in its 2010 haste bypassed “the traditional legislative process” and thus “the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.” So because ObamaCare is a bad law, the Court must interpret it differently from other laws.
Opinion Journal Video
Editorial Board Member Joe Rago on
the Supreme Court decision to uphold ObamaCare subsidies to federal
health exchanges in King v. Burwell. Photo credit: Getty Images.
Even Solicitor General Donald Verrilli didn’t try to convince the Justices to rule in favor of the good intentions of “reforming” one-sixth of the economy. Instead he stressed statutory ambiguity and asked the Court to defer to the IRS. But Chief Justice Roberts goes beyond this and simply substitutes his own version of what he thinks Congress intended. This means that not even a new President with a new IRS could rewrite the subsidy rule because this rule is now what Chief Justice Roberts says it is.
As Justice Antonin Scalia observes in his coruscating dissent, “We [the Court] lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.” (See more Scalia nearby.) The framers made the judiciary the least accountable branch and vested all legislative power in Congress to protect the accountability necessary for durable self-government.
Justice Scalia quips acidly that “we should start calling this law SCOTUScare,” but the better term is RobertsCare. By volunteering as Nancy Pelosi’s copy editor, he is making her infamous line about passing the law to find out what’s in it even more true than she knew at the time.
All of this is so far removed from the Chief Justice’s claims about his jurisprudence—calling “balls and strikes,” not “writing the rules”—that it raises the question about his political motives. Was he intimidated by the liberal campaign to brand any decision President Obama disliked as partisan? If he was, then he has done something worse for the Court’s reputation by showing it can be easily swayed by political pressure.
An even more troubling interpretation would be that the Chief Justice is moving pointedly to the left on the bench, like former Justices David Souter or Harry Blackmun. We wouldn’t conclude that yet, but it bears watching.
Perhaps the least credible part of the Chief’s opinion is the false judicial modesty in his closing. “In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—‘to say what the law is,’” he writes, citing Marbury v. Madison. “That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done.” By that, Chief Justice John Marshall meant interpret the law, not rewrite it.
