Dionne completely divorces Roberts’s comments from their context. Roberts wasn’t opining on the desirability of these services; he was challenging the government’s premise. The solicitor general had argued that the mandate wasn’t forcing people to engage in commerce, because they were engaging in commerce already. They were demanding health-care services all the time, and so the mandate was merely regulating their method of payment; it was requiring them to get insurance policies up front.
“Your theory is that there is a market in which everyone participates because everybody might need a certain range of health-care services,” Roberts replied. “And yet you’re requiring people who are not — never going to need pediatric or maternity services to participate in that market.” Is reading the law a breach of judicial ethics?
Dionne also criticizes Justice Samuel Alito’s invocation of the Congressional Budget Office. Alito cited the CBO’s cost estimates for future insurance policies to illustrate the fact that the mandate would constitute a large transfer payment from the young to the old: Policies for the young would increase in cost, while those for the old would decrease. This fact also undermines the government’s premise that the mandate is a mere regulation of payment methods: Young people won’t be paying for their services up front; they’ll be paying for other people’s services.
Roberts and Alito weren’t making policy arguments; they were challenging the government’s fishy legal premise. And they wouldn’t have had to “dive into policy details” if the government’s argument hadn’t required them to do so.
3. The Roberts Court is more political than its predecessors.
After Tuesday’s oral arguments, CNN’s legal analyst Jeffrey Toobin warned, “I think people have always underestimated how political a body the Supreme Court is. . . . This is an incredibly activist court, especially when — sorry, I mean if — it overturns health care.”
This criticism is the hardest to debunk mostly because it is so vague. Liberals and conservatives alike have decried rulings they disliked as “judicial activism,” when the justices were simply upholding the law. (For an example, take conservatives’ reaction to Texas v. Johnson, in which the Court overturned a ban on flag burning as a violation of the First Amendment.)
A judicial activist is a justice who imposes his own vision of justice in place of the people’s, as indicated through the laws passed by their elected representatives and the Constitution. Discerning the original understanding of Constitution is an extremely difficult exercise, no doubt. But the assumption that the conservative justices aren’t ruling in good faith is unwarranted.
In recent reports, it’s been noted that 20 percent of the Court’s cases were decided 5–4 in the 2010 term. True, but 48 percent of the cases were decided 9–0, which reflects a pattern that has held for years. Is the Roberts Court any more divided than the William Rehnquist Court in 2000, when 30 percent of the cases were decided 5–4? Is the fact that Roberts and Alito agree 96 percent of the time really more troubling than the fact that Justices Elena Kagan and Sonia Sotomayor agree 94 percent of the time?
It is still entirely possible that the justices will vote to uphold the mandate by 5–4 or even 6–3. And the Left’s overreaction to their aggressive questioning — its threat that the Court will “lose legitimacy” if it overturns the mandate — shows a total disrespect for the rule of law.
— Brian Bolduc is an editorial associate for National Review.