A Decision of Some Surprising Greatness

The Supreme Court's decision this morning to uphold the basic tenets of the Affordable Care Act was a considerable surprise. Chief Justice John Roberts had given no indication of what he finally decided to do, which was to join with the four liberal justices and uphold the mandate for individuals to get health insurance which lies at the core of the ACA's program.

Yes, the majority opinion he wrote stated that the bill exceeded the Constitution's limits on the applicability of the clause which allows Congress to govern interstate commerce.  Yes, he ruled that the Health and Human Services Department could not withhold all Medicaid support to states which do not cooperate with the law's provisions, which include a requirement that states set up an exchange of health insurance programs meeting Federal standards and allow/require citizens of the states to purchase health insurance.  Yes, he gave the Republicans some political fuel by only approving the mandate's fine--to be applied to those who have sufficient income but do not get health insurance--as a form of tax, which allows Republicans to claim, justifiably, that the Democrats have created a new tax.

Those complaints are minor.  Yes, it's a new tax, but it is relatively small, only applies to people with sufficient income, and only those who choose not to pay for health insurance. In that sense, I'd say the tax is eminently fair, levied upon those who can afford it, but instead would try to get a free ride on the cost of public hospitalization.  The libertarians hate it, but it's a deal the insurance companies accepted long ago, and it makes it possible for tens of millions of Americans who could not get insurance before to protect themselves against catastrophic illness.  It will end up making our society stronger, and opposing this Supreme Court decision is not going to play particularly well nationally for the Republicans.  As far as repealing the bill, it's a nice talking point, but there is no chance:  the Republicans would need 60 votes for repeal in the Senate in 2013, and they would not approach that number even with a big Romney victory.

The remarkable thing about the decision, though, was the position taken by Chief Justice Roberts.  In his confirmation hearings, he had insisted that he supported the principle of "stare decisis", that laws and precedents should be allowed to stand unless there was strong reason to override them, and that he was uncomfortable with laws being overturned by narrow, partisan 5-4 Supreme Court decisions.  He had a golden opportunity to do one of those:  his four colleagues on the right were dead set against the bill and its expansion of Federal authority.  Until today, his confirmation words had seemed hollow, designed to do little more than just get him confirmed.  Today, though, he took a courageous stand for the principles of law that he had espoused, when it really counted.  I may consider him lots of things, but I will not accuse him of hypocrisy in the future.   His was a stand worthy of the high office that he holds.