Americans were startled when Chief Justice John Roberts provided the key vote in the Supreme Court’s 5-to-4 decision upholding most of President Obama’s Affordable Care Act. Equally startling but almost unnoticed was how much his written decision also seems to call for humility and civility in the use of power.
Call it Roberts Rules of a New Order.
His choice of words in the majority ruling serves as a counterpoint to the hard-knuckle politics and institutional bullying that marks Washington and that has created a low regard for much of government, even the Supreme Court itself.
Today, almost every tool of coercion in governance – contempt citations, executive privilege, filibuster, no-amendments voting, you name it – is deployed in a perpetual, take-no-prisoners war of politics. Even the rhetoric of some high court’s justices has become sharper, more personal.
In his writing about the act’s individual mandate and the other big issue before the court – the expansion of Medicaid – the chief justice reminds us that power must be limited, accountable, and close to the people. It is best wielded by incentives, persuasion, and encouragement, not threats – or a “gun to the head,” as he termed it.
He seeks a “proper respect” between the three branches of government, as well as between the federal and state governments. That point was reflected in his providing legal cover for the health-care law in how it can “encourage” citizens to buy insurance with a tax.
The call for respect was also evident in the ruling’s action that prevents federal coercion of the states in accepting the new law’s expansion of Medicaid.
Congress cannot turn that antipoverty program, which began in 1965 as a voluntary program for the states, into one that can now shut off all funding if the states don’t expand coverage. Washington cannot use “blandishments” and “duress” to “foist an entirely new health care system on the states,” Roberts wrote.
“We do not consider whether the Act embodies sound policies,” he said. “That judgment is entrusted to the Nation’s elected leaders.” But the court can curtail undue use of power.
Even the high court itself must admit its limited role in policing the boundaries of government power, he adds. And no one part of government should have complete control over public life. That helps safeguard the liberty of conscience for each individual.
His approach has already shown results.
During his first five years as chief justice, the Supreme Court overturned fewer precedents or federal laws than during the terms of the three chief justices before him, according to a 2010 analysis by The New York Times. He has also tried to build unanimity on the court to achieve fewer 5-to-4 rulings.
The powers of the federal government are purposely limited to diffuse power down to local government and the individual. Washington’s ability to force states to spend or regulate must be limited to ensure that voters will know which elected officials to hold accountable. Liberties, he stated, derive from the diffusion of sovereign power. True police power only belongs to the states.
Not every ruling with Roberts’s stamp on it comes with moderation. Most notable is the 2010 Citizens United decision that allows unlimited spending for a candidate.
In the ruling on federal coercion in the expansion of Medicaid, however, the chief justice was able to win over six other justices, including two liberal members. Still, his tone is refreshing. Perhaps his influence in Washington might be rubbing off. One can hope.