"It’s up to [Roberts] to 'secure the court’s reputation as the one place in Washington that remains above politics.'"

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Can Roberts Save His Supreme Court From Partisanship?
By Greg Stohr, December 1, 2014

Speaking in September to law students in Nebraska, Chief Justice John Roberts said the U.S. Supreme Court needs to avoid the partisan rancor that has enveloped the other two branches of government.

“I don’t want it to spill over and affect us,” he said. “That’s not the way we do business. We’re not Democrats or Republicans in how we go about it.”

Now, for the second time since 2012, the nation’s highest court will decide the fate of the most divisive issue in U.S. politics: Obamacare. And Roberts, the Republican appointee who cast the vote that saved the health-care law two and a half years ago, is the focus of most of the attention.

That’s because he joined four Democratic-appointed justices to reject the earlier challenge to Obamacare, dismaying conservatives amid a report that he switched sides late in the deliberations. The question is whether he’ll back the law again.

“All the court-watcher chatter has been about the chief,” said Kevin Walsh, a constitutional law professor at the University of Richmond School of Law.

Supporters of the law -- President Barack Obama’s most important domestic initiative -- are particularly concerned, because many never expected the high court to take up the case, which centers on subsidies created under the measure. Arguments probably will be in early March.

Some say the court's decision to hear the dispute was politically driven. The justices accepted the case in the absence of the type of lower court disagreement that traditionally triggers Supreme Court involvement. And the case involves what in other contexts would be a routine question of statutory interpretation-- it involves four words in the 900-page law -- not a path-breaking constitutional issue.

Reading Roberts

Linda Greenhouse, who covered the Supreme Court for the New York Times from 1978 to 2008, wrote that the move left her struggling to “maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes.”

Stoking those fears is the difficulty in reading Roberts, 59, who was selected by President George W. Bush in 2005.

Roberts has often expressed concern for the court’s institutional legitimacy, which might counsel against overturning a major piece of legislation on party-based lines. At the same time, a ruling against the administration would let him reclaim the favor of legal conservatives.

John Yoo, a professor at the University of California’s law school in Berkeley, wrote that the new case gives Roberts “the chance to atone for his error” in 2012.

Tax Credits

The case will test Roberts’s description of his job as that of an umpire calling balls and strikes. At issue is a provision in the 2010 Affordable Care Act that gives tax credits to people when they buy insurance on an online exchange “established by the state.”

The question is whether people can collect those subsidies in the 36 states that have declined to set up their own exchanges and instead rely on one set up by the federal government. A ruling against the administration would severely undercut Obamacare, making insurance unaffordable for millions.

The showdown comes at a precarious time for Obamacare. A recent Gallup poll indicates the law has never been less popular, with 56 percent of Americans saying they disapprove of the statute compared with just 37 percent who like it.

Critics have also gained ammunition in newly unearthed comments by Jonathan Gruber, a Massachusetts Institute of Technology professor who helped develop the law. Gruber was once recorded saying the “stupidity of the American voter” and a “lack of transparency” were critical to enacting the measure.

Divided Court

Gruber also said insurance subsidies would only go to those who get coverage on state exchanges, a comment that cuts to the heart of the new high court dispute. He later said he misspoke.

In the last challenge to the law, in 2012, Roberts kept the court from dividing along party lines, when he voted to uphold the requirement that people buy insurance or pay a penalty. The other four Republican appointees said the provision violated the Constitution, and they would have invalidated the entire law.

Although Roberts said the requirement went beyond Congress’s authority over interstate commerce, he wrote that the provision fell within a different constitutional power because it “may reasonably be characterized as a tax.”

Many Obamacare supporters read Roberts’s vote as a step to protect the court’s reputation. They are calling for a repeat performance to stop what they say is a politically motivated lawsuit.

Court’s Legitimacy

“Chief Justice Roberts should be concerned about institutional legitimacy in this case,” said Elizabeth Wydra, chief counsel of the Washington-based Constitutional Accountability Center. It’s up to him to “secure the court’s reputation as the one place in Washington that remains above politics.”

Walsh, of the University of Richmond, says Roberts’s 2012 vote was driven by more than just a desire to avoid a decision that might be perceived as political. The chief justice didn’t want to overturn a statute based on constitutional limits that at the time weren’t clear, he says.

“People don’t give him enough credit for sticking to his legal commitments,” Walsh said. “They’re just enamored of this idea of a wily tactician. I think there’s more to it than that. I think he has a backbone.”

The 2012 vote doesn’t say much about how Roberts will read the law’s language this time, says Gillian Metzger, a professor at Columbia Law School. “Even if he’s motivated by concern about the court’s institutional reputation, he could say that in rejecting the federal subsidies he’s defending Congress and defending what Congress wrote,” Metzger said.

Four Justices

Because the court doesn’t reveal which justices voted to grant review, observers can only guess whether Roberts was among those who wanted to hear the latest dispute. The court takes up a case if at least four of the nine justices agree to hear it.

Regardless of who wanted to deal with it, the administration has a good chance of winning Roberts’s vote, says Barry Friedman, a professor at New York University School of Law. He says Congress clearly intended for the subsidies to apply nationwide.

“The only reason to rule otherwise is to take a partisan or ideological swat,” he said. “The chief justice has his views, but I’ve never considered him to be petty in that way.”
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