In 2005 I was asked by the Bush administration to assist Judge John Roberts during the Senate confirmation process for his nomination as chief justice of the United States. Over several pressure-packed days, and throughout the confirmation process, I felt I got to know him fairly well. I found him to be one of the most brilliant, thoughtful, and humorous people I’d ever met. Those qualities don’t always go together. It was clear he was going to be a major right-of-center voice on the Supreme Court for decades to come. So it is with a great deal of personal interest that I have considered his opinion in Sebelius and the commentary that has followed.
The chief justice is a good man, whose record over the whole of his career will probably be a good one, perhaps even a great one. However, I do not agree with this opinion. I believe the dissent got it right. I am well aware of the fact that a conscientious judge must sometimes rule in a manner that he personally disagrees with. But the majority opinion appears to be a result looking for a rationale, which is the antithesis of what I ever thought would be the approach of John Roberts. One of his new admirers described his opinion as “incoherent but brilliant.” That’s the most depressing thing I have read in a long time.
There is rampant speculation as to why Justice Roberts rendered the opinion he did. To many on the left it is believed that he was looking out for the Supreme Court as an institution. Liberals made it clear well in advance that if the Court struck Obamacare down they would attack the Court as politicized and illegitimate. They now say that the chief justice “put the country first” by the “clever” means of rejecting the government’s central Commerce Clause argument and instead achieving the same result by relying upon the federal government’s power to tax, an argument that was seen as peripheral at best by all the lower courts that had considered the issue of constitutionality. The same is true with regard to the litigants.
Some on the right say that Roberts has actually hurt Obama’s chances for reelection; that he has undermined Obama’s constitutional rationale (the Commerce Clause), restricted his ability to pay for Obamacare (giving states the right to reject the Medicaid provisions), and hung a big tax albatross around his neck during an election year (holding that the mandate penalty is a tax).
There may be some truth to all or part of this speculation. The problem is that none of these considerations are an appropriate basis for deciding a lawsuit. Cases are still supposed to be decided upon the law and the facts before the court. This may seem a mundane point in a discussion involving institutional and national salvation, but it’s true nevertheless. An umpire does not concern himself with the outcome of the game as he is calling balls and strikes.
Besides, once he gets on this slippery slope, what would make any justice think that he can even determine what is best for his institution or the country over and above a proper decision in the case before him? FDR attacked the Hughes Court, and it apparently bent to his will. That Court went down in history, not for putting the nation first, but for caving in to pressure. (The latest Rasmussen poll has the Supreme Court’s approval rating down 11 percent since the decision.)
I would like to think that none of this represents Roberts’s reasoning. But one thing is for sure: There are a lot of people out there on the left who think that it would be laudable if it did. That is a seriously misguided view of the role of the Court.
The desire to find a Reagan-like pony in all of this has caused some of my conservative friends to see one where none exists. In fact, many pessimistic liberals and optimistic conservatives have one thing in common: the view that somehow the opinion places new limitations on the use of the Commerce Clause, because it was deemed not applicable in Sebelius. They also think that the decision substantially restricts the conditions that the federal government can place on states regarding programs partially funded by the federal government. Unfortunately, in my view, both of these beliefs are wrong.
The majority opinion rejected the Commerce Clause as a valid basis for the individual mandate because, while the federal government can regulate commerce and commercial activity, it cannot compel economic activity, as the mandate attempted to do. The chief justice’s opinion contained a lot of music about the limitations of the Commerce Clause that is easy on conservative ears, but it was essentially the same set of points that conservative justices, usually in the minority, have been making for years. In 1942 the Supreme Court decided in Wickard v. Filburn that a farmer could be penalized for growing wheat on his own farm for his own consumption. Many view this as the high-water mark of the expansive interpretation of the Commerce Clause. The Court in Sebelius in no way overruled or rejected Wickard. On the contrary, the opinion pointed out that in Wickard the case involved the “activity” of growing wheat. In Sebelius there is no commercial activity on the part of one who chooses not to purchase health insurance. Wickard is just as egregious and just as valid as it has always been.
One of the few instances when the Court invalidated a congressional extension of the Commerce Clause was in the case of U.S. v. Lopez in 1995, when Congress tried to penalize gun possession in local school districts. In the Obamacare ruling, the chief justice wrote the following: “The path of our Commerce Clause decisions has not always run smooth, see United States v. Lopez . . . , but it is now well established that Congress has broad authority under the Clause.” So apparently Lopez was just a momentary glitch.
So we can be pleased that the Court did not take the unprecedented step of allowing the absence of activity to be regulated under the Commerce Clause, but that still leaves what I would guess to be 99 percent of future Commerce Clause cases — cases that will involve some sort of alleged “activity” on the part of the person or persons being regulated. We will still have the same ideological split on the Court, probably with the swing vote making a decision based upon how outrageous the federal overreach is. We are essentially where we were before with regard to the Commerce Clause. So, one cheer, not two. And certainly not three.
On the other issue I mentioned above, the Court decided that the federal government could not withdraw all of its previously committed Medicaid funding to a state on the grounds that the state decided not to participate in the Obamacare expansion of Medicaid. The Court did nothing, however, to prevent the federal government in the future from withholding money if a state reneged on previously-agreed-upon federal requirements. Here, the Court simply held that the feds could not egregiously withdraw previously-agreed-upon funding by imposing new requirements that a state could not or would not accept. This holding that states should not be subjected to a bait-and-switch operation was agreed to by seven justices, even though the administration was counting on being able to load part of the cost of Obamacare onto the states by means of this Medicaid requirement.
Again, we should be thankful for this status-quo result, but the political Left has no need for concern that this decision has done anything to diminish the federal government’s ability to call the shots if a state decides to take federal money.
So we are left with no silver linings and one major concern for the future that goes beyond Obamacare. It seems that, after this Court decision, while the government cannot make you buy broccoli under the Commerce Clause, it can tax you if you don’t.
Again, some optimists say that, since the Court relied upon the government’s taxing power, we are protected as a practical matter, since Congress would always be reluctant to pass a huge new tax. However, in the future Congress can insist it’s not a tax, just as it did this time. One would think that it would be politically more difficult to pull this off again, but there is no legal constraint to keep the congressional leaders from trying — deny it’s a tax during debate and have the government argue in court later that it is a tax.
The chief justice did remind us of one thing of overriding importance: We can’t sit back and count upon the courts to save us from ourselves. I believe that he made a mistake, but so did we. The real silver lining is that in a democratic republic we get another chance in November to fix it.
— Fred Thompson represented Tennessee in the U.S. Senate from 1994 to 2003. For more from Fred Thompson, visit FredThompsonsAmerica.com.