Gavel Grab

Roberts Casts Deciding Vote; ‘Activist’ or ‘Referee’?

By casting the deciding vote to uphold the central provision of the hugely controversial Affordable Care Act, Chief Justice John Roberts Jr. surprised many observers. He was praised by some liberal pundits and criticized by some conservatives following the 5-4 ruling (see Gavel Grab).

“It’s a terrible day for the American people,” said Rep. Michele Bachmann, a Minnesota Republican who ran for president, according to Salon. “This was an activist court that rewrote the law to make it even more ineffectual, and even more expensive.

A National Review Online headline trumpeted “Chief Justice Roberts’s Folly.” The editorial protested:

“The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.”

Wrote Ross Douthat in a New York Times essay, “Obamacare seems to have been saved by Chief Justice Roberts’s decision to put political considerations ahead of a straightforward reading of the health care bill.”

From an opposite vantage point, Andrew Rosenthal wrote in a New York Times blog, “This is going to be hard for right-wingers to swallow, since Chief Justice Roberts was their great standard bearer for conservative judicial and political thought and against ‘judicial activism.’ But he has enhanced, in no small way, the reputation of a court whose standing has suffered greatly since Bush v Gore.”

“This could be a huge day in the evolution of Chief Justice Roberts as a great chief justice,” said Laurence H. Tribe, a liberal Harvard law professor, according to a New York Times article. Tribe served in President Obama’s Justice Department.

“Today, in serving as the swing vote in 5-4 ruling that largely upheld President Obama’s health care law and, in so doing, handing the incumbent a major political boost, Roberts made good on his pledge to referee the game not play it,” Chris Cillizza wrote in a Washington Post blog.

In the court’s majority opinion, Chief Justice Roberts wrote, “The Affordable Care Act’s requirement that certain in­dividuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.” He continued, “Be­cause the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

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