Another Way to Split the Baby: Chemerinsky and the Roberts Court’s ACA Decision

The Supreme Court’s holding in National Federation of Independent Businesses v. Sebelius (the “Obamacare” case), with its particular constellation of things-upheld, things-struck-down, and who-voted-with-whom, surprised everyone except me and one commentator at the New York Times.  Both of us called the decision’s basics – 5-4, with Roberts both casting the deciding vote and writing the opinion – and for the same reason: because we saw no way in which Roberts could protect the legitimacy of his Court’s precedent without upholding and no way in which Roberts could limit that holding unless he wrote it.

Recently, however, I reviewed UC-Irvine law professor and much-assigned Constitutional Law casebook author Erwin Chemerinsky’s newest book, The Case Against the Supreme Court (Viking, September 29, 2014).  Chemerinsky argues that if the purpose of the Constitution is to protect fundamental individual rights against institutional power, the Supreme Court has failed in its job to uphold the Constitution, often at the times the Constitution needed it most.  One of these failures, in Chemerinsky’s view, was the Court’s ruling in NFIB v. Sebelius.

I can’t fault Chemerinsky’s reasoning, and I personally think he’s right.  But what his discussion of this case did was to cast my prediction of the case’s holding, and the holding itself, in a new light.

For some time I have, simplistically and cynically, been predicting the Roberts court’s rulings based on the following system:

  • Government vs. individual: government.
  • Business vs. individual: business.
  • Government vs. business: business.
  • State government vs. federal government: states.

This system doesn’t always work – unions are arguably institutional powers, yet the Court treats them like individuals (that is to say, badly), and Scalia’s dogged adherence to the Fourth and Sixth Amendments has produced some rulings in favor of individuals as against government prosecutorial power (for which I am generally grateful).  But this is obviously not a Court that is, in Roberts’ words, “calling balls and strikes.”  This, like any of the Courts before it, is a Court with an agenda – which is how I can create a system for predicting its rulings at all.

Chemerinsky points out that in Sebelius, Roberts finds that conditions on federal funding are unconstitutional for the first time in U.S. history – and for spurious reasons. The fact that those funds are Medicaid funds, intended to protect the health of society’s poorest individuals, cannot be overlooked.  Here we have the federal government losing to the state governments, in the terms of the opinion, and individuals losing to both.  The system requiring individuals to purchase health insurance from private insurers, meanwhile, is a clear case of individuals losing to business – and, while not the Court’s doing, one could argue that the death of the public option represented a loss for government against business as well.

My original prediction/interpretation of the Court’s ruling in this case questioned the continued acceptance of the Court’s precedent.  I still suspect that factored into Roberts’s decisionmaking.  But Chemerinsky has also pointed out to me that, in addition to being a last-ditch effort at legacy preservation, Roberts’s opinion in this case also split this particular baby in the ways that best fit the Court’s framework for protecting (or failing to protect) individual rights against various institutional powers.  Something else to consider in my ongoing struggle/fascination with the Obamacare decision.


About Dani Alexis

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One Response to Another Way to Split the Baby: Chemerinsky and the Roberts Court’s ACA Decision

  1. Brian Coyle says:

    Remember how public the court is, and how prosecutorial. In no other US court do judges speak as much during trial, with statements easily scripted and suited for public consumption. By accepting tendentious cases, they signal a propaganda purpose. During the ACA”s trials, right-wing justice statements are great fodder for many believers. Keeping intentions hidden, Kennedy and Roberts built tension to generate news value. It was very hard to believe the court would strike down the law. The question was how conservative justices would wiggle out.

    People were surprised that Roberts, not Kennedy choose to be the wiggler. I doubt Kennedy could pull off what Roberts did, as it was so Machiavellian. Withholding health care from less-well-off communities in Republican states does more than satisfy right-wing blood lust. Social services generate political support. Expanded Medicaid,that reaches the working poor pulls them into a political embrace. Mobilized, they can challenge right-wing power in their states.

    Listening to interviews of those now disenfranchised from Medicaid in red states, it’s remarkable how often they blame Obamacare for not predicting and preventing their fate. Uber-conservatives must listen with glee, since legal attacks on the ACA traveled such insignificant or settled grounds they surprised everyone. It takes a really cynical judge to do what Roberts did. Someone capable of claiming they make decisions like umpires call balls and strikes. Although any good umpire knows how subjective that can be.

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