Evaluating SCOTUS and the ACA Decision

It has now been a little more than a week since the Supreme Court announced its decision upholding the affordable care act (formally NFIB v. Sebelius) and the backlash is only beginning to calm. I wanted to wait a bit before writing about the decision and take some time to digest the numerous reactions from liberals and conservatives, Democrats and Republicans, and legal scholars and politicians.

In my previous post, written the day before the decision, I predicted the court would uphold the act in its entirety with Chief Justice John Roberts writing the majority opinion and joined by Justices Kennedy, Ginsburg, Breyer, Kagan and Sotomayor. A few thoughts on that prediction. While I was correct and the ACA was upheld with Roberts joining the liberal members of the court, I was dead wrong on Justice Kennedy. Kennedy sided with Scalia, Thomas and Alito in a dissent signed by all four but with no one justice taking authorship (the court politics of this are interesting and I will discuss them in a separate post). As a result the decision was 5-4, not 6-3 as I predicted. Roberts upheld the mandate section of the ACA under the taxing power of the federal government and not the Commerce Clause as articulated in the legislation. Nobody I have read got that right. Additionally, the court chose to limit the expansion of Medicaid proscribed in the ACA to states that choose to accept such an expansion, ruling by 7-2 with Kagan and Breyer joining Roberts, Scalia, Kennedy, Alito and Thomas, that the Medicaid expansion as written is coercive and therefore unconstitutional. I did not anticipate this and certainly did not see Kagan and Breyer joining the five conservatives in the Medicaid section of the opinion (more on that later as well). Finally, I suggested that Justice Scalia's odd and clearly partisan behavior while reading the decision on Arizona's S.B. 1070 law might be an indication that he was upset about the ACA decision coming later that week. I believe that was, in part, the reason for Scalia's outburst.

Reaction to the court's decision was immediate and intense on all sides of the political spectrum. From Republicans came anger and outrage that the Chief Justice, appointed by George W. Bush, had not voted as they saw fit. Some of the criticism was coldly rational, disagreeing with Roberts' opinion that the tax power allowed the mandate and the law to stand. But much of it was a more visceral, angry kind of reaction, filled with name calling and cries of traitor. Many on the right saw Roberts' decision as motivated by political considerations. Some, such as Louisiana Governor Bobby Jindal, suggested that Roberts was coerced by the "liberal media," specifically the New York Times. Others hinted that Roberts was pressured by President Obama and was unwilling to stand up to the executive branch.

From Democratic supporters of the ACA came a collective sigh of relief that President Obama's signature piece of legislation had survived constitutional challenge. Some liberals, while pleased that the ACA was upheld, decried the erosion of the Commerce Clause and the limitations on the Medicaid expansion.

Some on both the left and the right thought that Roberts might be playing "the long game," pacifying Democrats in the short term while establishing precedent restricting federal power for future cases, particularly in his assessment of the Commerce Clause. 

All this in the first day and a half after the court issued its decision.

Then, on Sunday evening, Jan Crawford, a highly respected legal correspondent for CBS news with close ties to several of the conservative members of the court, notably Clarence Thomas, published a revealing piece citing sources within the court. In it she suggested that Roberts had initially sided with Scalia, Kennedy, Thomas and Alito in overturning the ACA but had later changed his mind and joined Ginsburg, Breyer, Kagan and Sotomayor in upholding the law. Crawford's article ignited a firestorm of speculation. If Roberts did, indeed, change his vote, why? When? Her article also raised questions about where the leaks from the court came from and what the motivations of those leaking might be.

On Tuesday of this week Paul Campos, a legal scholar at the University of Colorado at Boulder, published a piece at Salon.com citing his own sources within the court. In his article, Campos asserted that Roberts had initially sided with overturning the ACA and had written much of the body of the opinion that later became the dissent, before joining with the liberals in upholding the ACA under the federal taxing power. The key distinction between Campos's analysis and Crawford's is that, in Campos's view, the dissent was not authored by the four justices voting against the ACA in a display of judicial solidarity, but instead was authored primarily by Roberts, who then reconsidered his position and wrote the majority opinion upholding the ACA.

In all, it was an extraordinary week with new developments, at times, nearly every hour. The reactions to the decision generated almost as much drama as the decision itself.

Certainly the ACA decision is one of the most important of my lifetime to date, although there are still many political machinations that have yet to play out. The Republican party will continue to try to overturn the ACA through Congress and, depending on the November election, may be able to do so. But even with Republican majorities in both houses and Mitt Romney in the White House it will be difficult to fully repeal the ACA.

Here, then, is where we stand on the various outcomes of the ACA decision:

• The ACA  was upheld with nearly all its provisions by a 5-4 majority.
• The individual mandate section of the law, which assesses a small penalty to the portion of the population that does not choose to buy health insurance and is not covered by Medicaid, was upheld as part of the taxing power of the federal government. It was not upheld, as intended when written, under the section of the Constitution that allows the federal government to regulate interstate commerce. In her own opinion, Justice Ginsburg pointedly disagreed with Justice Roberts on this issue. 
• The Medicaid expansion part of the ACA was upheld but not the language that would have made it mandatory for all of the states to expand their existing Medicare programs or risk losing federal funding for Medicaid altogether. This was ruled coercive by a 7-2 vote, with only Ginsburg and Sotomayor dissenting. I tend to agree with Jeffrey Rosen that some kind of deal was negotiated between Breyer, Kagan and Roberts whereby Breyer and Kagan lent their support to the Medicaid limitations in exchange for Roberts upholding the ACA under the power to tax. 

There has been a lot of talk about Roberts acting politically in deciding to go against the grain of his conservative colleagues and uphold the ACA. That may be partially true. It seems to me, however, that all the justices act politically, albeit to different degrees. Ultimately Roberts' decision was a mixture of politics, law and a desire to maintain and strengthen the legitimacy of the court. He also demonstrated, as in the Arizona immigration decision a few days earlier, a willingness to negotiate, compromise and work with the liberals on the court. I suspect, as Jeffrey Rosen pointed out in a 1993 profile of him, that Scalia has, to some degree, alienated the other justices with his outlandish behavior, overtly political attitudes and willingness to alter his legal reasoning to fit his political beliefs. Roberts may feel the need to distance himself, at times, from Scalia's brand of adjudication.

In the final analysis the ACA decision is an example of legal and political compromise, not perfect for any one group but, I believe, exceedingly good for the country.