Courts

John Roberts Will Save The ACA By Rejecting His Own Reasoning For Killing Voting Rights

There is simply no intellectual honesty here at all.

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(Photo by Alex Wong/Getty Images)

There were basically three tiers of panic about Amy Coney Barrett’s disgracefully abrupt ascension to the Supreme Court. One tier feared that this was all an effort to guarantee Donald Trump could maintain the White House by judicial fiat. This is likely how it was sold to Trump himself, who might have squandered his only chance of staying in office by falling for this ruse. Others dismissed this — the conservatives had a majority as is — and instead focused on the jurist’s explicit animosity toward reproductive freedom and the Republican desire to get the full transition to Gilead locked in before a possible shift in the Senate. Meanwhile, the third tier, and the one that largely drove the official Democratic response to the nomination, worried that the rapid elevation was all about getting some, pun intended, insurance on the upcoming Affordable Care Act challenge.

It turns out that last argument was probably bunk. It’s often folly to rely on oral arguments for divining the eventual opinion, but this morning’s oral argument on the Obamacare challenge seemed to signal a solid majority unwilling to follow the Republican argument. And the theme that resonated from Chief Justice Roberts — and from Brett Kavanaugh, who followed the Chief’s lead — is that severing the individual mandate provision and allowing the rest of the law to stand is the proper solution.

But why it was a bunk concern offers a telling and tragic story about the state of the United States Supreme Court and the profound absence of any sense of legal consistency among its avowed conservatives. At the end of the day, the judicial philosophy of these justices is about the short-term best interests of the Republican Party. Period, full stop.

To be sure, this was a crisis entirely of Chief Justice Roberts’s own making. Had he upheld the ACA as a constitutional exercise of the interstate commerce clause — like everyone knew it was — then this case wouldn’t be here. But his original opinion was one of those “landmine decisions” where the result was less important than the majority’s showing of its work. Roberts upheld the ACA, not as a commerce clause case, but as a “tax.” This technical shift was lost on most straightforward political observers excited by the outcome, but it allowed Roberts to lay the groundwork for future efforts to undermine the commerce clause, the basis of everything from civil rights to environmental regulation. It also meant that when Congress later zeroed out the tax portion of the bill, Republican lawyers saw a chance to dump the whole thing. Ah, the best laid totally disingenuous plans….

So the crux of this case is “can the law survive by just severing the part where they now have a zero dollar tax or must the whole thing be tossed on the grounds that the mandate was central to the whole reasoning behind the law?”

Chief Justice Roberts made it clear that it could just be cut. “Congress left the rest of the law intact when it lowered the penalty to zero.” In other words, Congress signaled that their intention was to keep the ACA when it had an opportunity to kill it. This was most likely done because they had absolutely zero alternative and had noticed that the ACA had grown in popularity enough that Republicans were now campaigning on pledges to maintain guarantees of coverage for those with pre-existing conditions.

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But this is the rub. In Shelby County, John Roberts struck down the primary tool of the Voting Rights Act and declared racism solved. In Justice Ginsburg’s dissent, she pointed out that severability was expressly written into the Voting Rights Act, and that, at worst, the majority could determine that Shelby County, Alabama no longer met the constitutional requirements for the edicts of the Act, but could not let that turn into a facial demolition of the whole legal regime.

And yet Roberts did just that.

A key practical element of the Shelby County severability argument was the fact that Congress had just overwhelmingly and on a bi-partisan basis renewed both the pre-clearance provision of the law and the list of jurisdictions requiring DOJ clearance. It was pretty clear evidence that they did not intend any individual challenge to overturn the Act as a whole. But today, when it’s convenient to John Roberts, recent congressional affirmation is ironclad proof of severability.

Certainly there are high-minded academic pretzels that can be made of how this is all somehow consistent — providing this sort of vapid cover is why the Federalist Society exists — but reduced to brass tacks (or “tax” for the sake of this opinion), John Roberts just said “look, Congress had a chance to strike it all down and didn’t proving they intended the law to survive as a whole” despite ignoring the very same logic when it came to aggressively disenfranchising Black voters.

There is no animating judicial philosophy beyond the political expediency of the Republican Party. And if polls didn’t overwhelmingly show that Republicans would get gutted in their Middle America strongholds if they allowed pre-existing condition guarantees to die, you can bet Roberts and Kavanaugh would have spent today quipping from the bench about the abiding necessity of recognizing this law as fundamentally unenforceable without an individual mandate.

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But this is what they were put there to do.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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