Dear Walter, Emily, and Judge Posner,
It was all kinds of historic this morning at the high court. The whole pressroom looked like a bunch of high-school seniors waiting to see whether the mailman was bringing them a fat envelope from their first-choice college or a thin one. It turned out to be a pretty fat envelope.
There were belly dancers protesting in favor of single payer on the plaza and the now-familiar tricorn hats. When former Justice John Paul Stevens entered the room, there were whispers that he might be preparing to read his own dissent. And when the chief justice started to read his majority opinion, nobody could fail to notice that Justice Sonia Sotomayor looked exhausted, Justice Antonin Scalia looked like he wasn’t very happy, and that nothing else was being telegraphed.
The first few minutes of Roberts’ opinion, in which he indicated his distaste for an individual mandate that—for the first time—reaches out to regulate inactivity, sent observers down the wrong rabbit hole. I gather that some early reports even suggested the ACA was struck down. When he pivoted to explain that, per Walter, the mandate was merely a tax, and that it is the responsibility of the court to interpret the statute in a way that would allow it to stand, there was a collective head-snap. His argument that the payment looks like a tax, is administered through the IRS, and functions as a tax was as savvy a way to save the bill—and perhaps to differentiate himself from some of the court’s more conservative conservatives—as he could muster.
He paid for it in the dissenters’ claims that this was not only the opposite of judicial humility, it was activism of the worst sort. Reading a dissent for the conservative wing, Justice Anthony Kennedy (remember he was the guy everyone believed to be in play) accused him of making the problem even worse—particularly with regard to the Medicaid expansion and the states that choose not to accept it. Kennedy—reading a dissent jointly authored by Scalia, Thomas, Alito, and himself—described the majority opinion as “vast judicial overreaching” that will put an unaccustomed constitutional strain on the union.
Ruth Bader Ginsburg dissented and laid out the argument for upholding the mandate under the Commerce Clause power. She said the Commerce Clause limitation was a “stunning setback” that should have no staying power. Walter, there is a real question lingering about whether the decision on the scope of the Commerce Clause is limited or broad. Also, I have real questions about whether the 7-2 vote to strike down the Medicaid expansion calls into question the other federal-state partnerships, or if the proposed remedy creates a fix that renders the Medicaid portion of the decision mostly symbolic. Like Emily, I am reading furiously. Like you Walter, I am glad we live in a country in which people can get affordable care when they need it. And I think Chief Justice Roberts deserves enormous credit (see Linda Greenhouse on “embarrassing the future”) for making almost everyone a little bit happy and a little bit terrified. I think he threw himself on his sword for the court in a way that would have made William Rehnquist proud.
Read the rest of Slate’s coverage on the Supreme Court upholding the Affordable Care Act. Below, watch Dahlia Lithwick describe the scene at the Supreme Court this morning: