Seven years after John G. Roberts was appointed chief justice of the Supreme Court, the conventional wisdom was settled. He was predictably conservative and, to his detractors, activist and hostile to precedent. Few observers doubted the health-care ruling would be 5-4. Hardly anyone figured that Chief Justice Roberts, and not the more centrist Justice Anthony Kennedy, would provide the swing vote.
It is hard to overstate the significance of what just happened.
No matter which way the court ruled on the Affordable Care Act, the inevitable immediate effect would be that of a boot to a beehive. A contentious presidential election is underway. The incumbent’s signature legislative accomplishment was on the line. The parties were agitated. Amid the swarm of overheated predictions and pronouncements, however, Roberts’s note of moderation is a carefully measured rebuke.
“It is not our job to protect the people from the consequences of their political choices,” the chief justice wrote toward the tail end of an introductory civics lesson in the majority’s decision to uphold the law.
To the majority of Americans who voted to elect Barack Obama president, that might sound a little derogatory, but that reading misses the point. By recasting himself in the more modest role of justice-as-umpire in what may prove to be the defining decision of his tenure, Roberts threw the ball back across the street to Congress and closed the courthouse doors to anyone looking for a reliable political ally.
The battle over President Obama’s health care law cost taxpayers hundreds of millions of dollars and wasted a lot more time than it should have. There was ample room for compromise. Although the two parties held strong ideological differences, few disagreed with the driving needs for reform: ballooning costs and growing disparities in coverage.
But health care – and most other significant legislative business – ran headlong into a quixotic and divisive Republican strategy to oppose every Obama initiative in the hope of limiting his presidency to one term.
At a time when the national to-do list is long with urgent and significant issues – the national debt, immigration, energy security, climate change, etc. – the possibility of devoting another Congress to undoing health care runs contrary to the national interest.
That is not to say the Affordable Care Act is perfect. There is certainly room for greater flexibility to states and businesses in addressing costs. Recognition of valid nonmedical approaches to health care are also appropriate. But these and other omissions reflect the impoverishing effect of obstructive politics.
Obama’s legislation passed without a single Republican vote. It is not only tempting but possible to imagine how much stronger the Act might have been – and how unnecessary the court drama that followed – had it emerged from an engaged bipartisan debate and agreement.
This might be where the court decision constructively points a finger at those most responsible for the shape of our politics: the people.
According to an ABC/Washington Post poll released prior to the court ruling, just 36 percent of respondents held a positive opinion of the health-care law, yet 39 percent also say the health-care system is broken. It is tempting in times of fierce partisanship to decry the governing model the Framers devised as so fraught with checks and balances as to be impossibly dysfunctional. But the purpose is to force compromise.
Blocs like the Tea Party and the Occupy Movement reflect a restive public. Public opinion of Congress hovers below 10 percent. These negatives are stirred up by an increasingly partisan media environment where the line between opinion and news is blurred and facts become harder to discern.
But the Roberts decision has made it clear where the responsibility for public policy rightly lies. “Members of this Court are vested with the authority to interpret the law,” he wrote in the majority opinion. “[W]e possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.”
The Supreme Court has set the table. It is now up to the people to determine how and whether we return to constructive debate.