Examining the Origins of “Robertscare”

In the end, applesauce won over baseball. Fourteen years ago, during Senate hearings regarding his nomination as chief justice of the United States, John Roberts used a baseball metaphor to explain his view of judges’ modest role:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire…I will remember that it’s my job to call balls and strikes, and not to pitch or bat.

On two major cases related to President Obama’s signature health care law, however, Roberts violated his 2005 pledge, wriggling himself into lexicographical contortions to uphold the measure passed by Congress. As his then-colleague Justice Antonin Scalia noted in the second ruling—which posited that the phrase “Exchange established by the state” applied to exchanges not established by states—upholding Obamacare caused Roberts to embrace “pure applesauce.”

Political Flip-Flop

She writes that he initially voted with the four other conservatives to strike down the ACA, on the grounds that it went beyond Congress’s power to regulate interstate commerce. Likewise, he initially voted to uphold the ACA’s expansion of Medicaid. But Roberts, who kept the opinion for himself to write, soon developed second thoughts.

Biskupic, who interviewed many of the justices for this book, including her subject, writes that Roberts said he felt ‘torn between his heart and his head.’ He harbored strong views on the limitations of congressional power, but hesitated to interject the Court into the ongoing health-insurance crisis. After trying unsuccessfully to find a middle way with Kennedy, who was ‘unusually firm’ and even ‘put off’ by the courtship, Roberts turned to the Court’s two moderate liberals, Stephen Breyer and Elena Kagan. The threesome negotiated a compromise decision that upheld the ACA’s individual mandate under Congress’s taxing power, while striking down the Medicaid expansion.

On the day of the ruling in June 2012, Chris Cillizza, then writing for The Washington Post, claimed that Roberts’ opinion “made good on his pledge to referee the game, not play it.” But the story Biskupic tells, which confirms prior reporting by Jan Crawford published shortly after the ruling, contradicts Cillizza’s view entirely. Roberts’ entire approach to the case consisted of playing games—and highly political ones at that.

The tenor of the passage reinforces how Roberts abandoned his stated principles in NFIB. Over and above talk of “the ongoing health insurance crisis” (perhaps a rhetorical flourish inserted by a liberal Atlantic writer) Roberts had no business feeling “torn between his heart and his head,” let alone stating as much to a reporter. Judges can feel both empathy and sympathy for parties in the courtroom and at the implications of their rulings. But facts remain facts, the law remains the law. Lady Justice remains blind for a reason.

An umpire—or a good umpire, at least—should make calls without fear or favor. If that means calling a third strike against the star slugger for the last out of the World Series, so be it. By his own admission, Roberts let factors outside the law determine his vote in the case. He abandoned his key test at a time when he should have followed it most closely.

Roberts’ Judicial Arrogance

I took that position not because I agree with Obamacare, but because Congress in 2017 decided to set the mandate penalty to zero while maintaining the rest of the law. Of course, Congress had taken no such action clarifying its intent on the law at the time of the ruling in NFIB v. Sebelius.

If the current lawsuit represents judicial activism, asking judges to take an action that Congress explicitly declined to embrace, then Roberts’ 2012 decision to uphold the individual mandate represents an act of judicial cowardice, running for cover and hiding rather than taking the decision that the law requires. For that reason alone, conservatives should refer to the law as “Robertscare”—for the justice who went out of his way to save it—rather than Obamacare. It shall stand as his epitaph.

This post was originally published at The Federalist.

Health Care’s Polls and (Un-)Popularity

In conjunction with yesterday’s six month benchmark since the health care bill was signed into law, several organizations released polls regarding the measure.  The American Action Forum released polling data indicating a majority of voters oppose the health care law – and when informed about the law’s tax increases and other onerous provisions, opposition only grows.  Likewise, the US Chamber of Commerce released a poll of small business leaders, which found that 55% of small business owners believe the law makes them less likely to hire new workers, and a whopping 78% of small business leaders believe the law will increase costs – as a result of which a majority of small business leaders are more likely to reduce health insurance benefits.

The continued negative turn of polling results was duly noted at the law’s six month mark.  Yesterday’s CongressDaily PM noted that Speaker Pelosi – she of the infamous “We have to pass the bill so that you can find out what is in it” – did not make a public appearance six months to the day after the massive overhaul passed. (Is it because she found out what was in the law?)  The Washington Post’s Chris Cillizza analyzed “Why Democrats Aren’t Running on Health Care,” stating that “sometimes a picture is really worth 1,000 words,” a reference to the Pollster.com summary of surveys on the health measure (reproduced below).  And Democrat pollster Peter Hart advised Democrats to “opt for avoiding the subject rather than wading into the subject.”  In perhaps the most interesting example of the backpedaling on health care, Nancy-Ann DeParle was interviewed by liberal blogger Ezra Klein yesterday, which included this exchange on the law’s continued unpopularity:

Finally, the bill isn’t popular, and it looks to have slipped a bit further in the last month. Why do you think that is?

I don’t look at polls that much but to the extent I have, it looks pretty stable.  There’s a certain number of people who’ve never liked it and their intensity has remained about the same.  There’ve been people who’ve always loved it and they’ve been stable.  And then there are people in the middle, who’ve been pretty stable…

In other words, Democrats have moved from claiming approval will go up “the minute the President signs the health care reform bill” to trumpeting the fact that polling “looks pretty stable” – which some may view as an example of the soft bigotry of low expectations.

Finally, I’ll note that Heritage has released a graphic interpretation of the health care law that you may find both interesting and useful.  Have a great weekend!