When, just over two years ago, right-wing superlawyer Michael Carvin filed his first lawsuit seeking to deny Affordable Care Act tax credits to millions of individuals in states with federally operated exchanges, die-hard ACA opponents saw one reason why the Supreme Court might use an isolated four-word phrase to sabotage the ACA—that all five conservative justices would vote their political gut. As decision day approached, many ACA supporters (including me) suspected that the challengers’ political appeal might only be overcome if one or two of the conservative justices—Anthony Kennedy and/or Chief Justice John Roberts—would embrace states rights–based constitutional arguments to save the law.
Last Thursday, when the Court issued its decision in the case, King v. Burwell, all these hopes and fears about the political and ideological vectors at play, specifically, with Roberts, turned out to be dead wrong. The chief justice had bigger fish to fry—personal, institutional, and policy priorities—that led him to uphold the Obama administration’s decision to make tax credits available nationwide:
- Asserting his personal leadership of the Court, by mobilizing a 6-3 bipartisan majority, and taking the heat for writing a no-holds-barred, decisive opinion in the most politically divisive case on this year’s docket;
- Continuing an ever more evident drive to advance the Court’s power vis-à-vis the two elected branches, as the final decider and major direction-setter on the nation’s most fought-over policy issues;
- Sending a blunt message to conservative activists, lawyers, and politicians to stop abusing the judiciary as a handy back-door gimmick to reverse political defeats they have been unable to reverse in political arenas—in particular, to stop bringing cases designed to “undo” the ACA;
- Sending a subtle, gratuitous, but nevertheless quite discernible piece of policy advice to Republican politicians and policy-makers, in the form of a reminder of the ACA’s Republican ancestry in Massachusetts’ 2006 Romneycare reform law, referencing that model’s conservative credentials as a way to “expand coverage” while relying on private health insurance markets.
As the litigation made its way toward the high court, ACA opponents had been upfront about their bet that conservatives on the bench shared, and would act on their animus to the president’s signature legislative accomplishment. In September 2014, after the full D.C. Circuit Court of Appeals had voted to vacate and rehear a 2-1 decision in his favor, Carvin candidly opined that raw partisan politics would drive the Supreme Court to preempt the appellate court’s consideration of the case: "I don't know that four justices, who are needed to [grant review of the case] here . . . are going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think.” Asked if he believed he would lose the votes of any of the five conservative justices, he smiled and said, "Oh, I don't think so.” Carvin’s cynical take was hardly unique; some of his allies openly forecast that Roberts would feel a need to appease conservatives who excoriated him for his 2012 vote to save the ACA.
Last Thursday, Roberts dashed conservative hopes and liberal fears of a partisan political decision. To the contrary, as conservative blogger Josh Blackman ruefully explained on a Federalist Society post-mortem conference call, the decision effectively seemed to elevate the ACA into a kind of “untouchable super-statute that is beyond reach.” Blackman characterized Roberts’s message as, “This is over . . . We’re through”—meaning, we’re through hearing cases ginned up by our clever lawyer friends to precipitate judicial de facto repeal of the law. Roberts’s brush-off of these core allies was foreshadowed by remarks he made at the University of Nebraska a few days before Carvin bared his cynical partisan take on the conservative justices. Then the chief justice said he was “worried about people having [the] perception” that the Court is no less a political body than Congress or the presidency. He attributed this trend to polarization in the elected branches, saying that he did not “want that to spill over and affect us.” Though widely disregarded at the time as standard civics class pap, it now appears clear that Roberts was serious and motivated by clear-eyed concern about the Court’s stature. As he observed in his 2005 confirmation hearings, “It is a very serious threat to the independence and integrity of the courts to politicize them.” King v. Burwell posed just such an institutional threat, and it was his job as chief justice to dispel it.
But to Roberts, protecting the Court’s reputation does not mean staying above the fray, much less retreating to the sidelines. On the contrary, the decision showed how focused he is on enhancing the Court’s power, well understanding that its non-political image is, ironically, essential to its clout. His opinion reasoned that, read in the context of the overall statute and Congress’ “plan,” the four-word phrase “established by the state” on which the challengers relied was “ambiguous.” When statutes are ambiguous, long-standing black-letter law requires courts to defer to an agency’s reasonable interpretation, rather than impose an interpretation that the court considers correct. But Roberts did not take that route. Instead, he said, the Court must decide for itself what the law means, on the ground—never before asserted so categorically—that the availability of ACA tax credits is “a question of deep economic and political significance that is central to this statutory scheme.” Of course, he then held that the administration’s interpretation was the right call. Administrative law experts were quick to note that, in the words of Ohio State law professor Chris Walker, “King v. Burwell—while a critical win for the Obama Administration—is a judicial power grab over the Executive in the modern administrative state.”
Roberts’s yen to project the Court as a player on the policy question of “deep economic and political significance” posed by the case was also manifest in another theme of his opinion, understated but audacious. Not only did he note the ACA’s roots in Romneycare, but he underscored that law’s record of effectiveness in reducing the “uninsured rate in Massachusetts to 2.6%, by far the lowest in the Nation,” and then went on to observe that the ACA “adopts a version of the three key reforms that made the Massachusetts system successful” (emphasis added), including the affordablity tax credits at issue in King, as well as the “individual mandate” that Roberts upheld as a pay-or-play tax incentive in 2012 in NFIB v. Sebelius. This and other notably favorable descriptions of the ACA in Thursday’s opinion seem aimed at Republican policy-makers and politicians. His message recalls his 2012 approval of the law’s individual mandate as an optional tax incentive—preferable, he wrote, because the “taxing power does not give Congress the same degree of control over individual behavior” as a Commerce Clause–based absolute mandate.
As I wrote after the NFIB decision, Roberts took this policy argument from a 2011 D.C. Circuit opinion by fellow George W. Bush appointee Judge Brett Kavanaugh; that opinion favorably portrayed the ACA as potentially “the leading edge of a shift” to “privatize the social safety net and government assistance programs.” In these opinions, Kavanaugh and Roberts seem to be pitching a line favored in conservative policy circles prior to the recent rise of tea party-style anti-government absolutism—keep and expand the national safety net, but privatize and regulate it through incentives rather than commands. With his decisions in NFIB v. Sebelius and King v. Burwell, however, John Roberts has gone further than merely touting that big-government conservative model for safety net governance, casting the ACA as a product of that model. He has used his power to entrench it—against demands from the left for a command-and-control version of the ACA individual mandate, and against conservatives' strategy of killing the ACA in court. This, Roberts concluded, is “the type of calamitous result that Congress plainly meant to avoid”—and which, the chief justice made crystal clear, he will be loath to permit, in this case and any other challenge the law’s opponents might cook up.