Many Americans rejoiced, while others sighed, at the Supreme Court’s decision to uphold Obamacare on a narrow 5-4 margin. Much of the legal community is surprised that the Court sidestepped the commerce clause issue and validated the Affordable Care Act individual mandate on tax and spending power. However, the real story behind today’s decision is how the Justices lined up.
The opinion was authored by Chief Justice John Roberts. This alone is not terribly shocking, as the Chief Justice of the Supreme Court tends to write the most monumental decisions of any particular term. The shocking part of today’s decision is that Chief Justice Roberts, not Justice Kennedy, joined the four notably liberal Justices to complete the majority opinion. Over the past few years, Justice Kennedy has been the determining vote on nearly every important Court decision, earning him the accolade of being the “swing vote.” But this week, that seems to have changed and everything is now up in the air.
In a surprising move, Chief Justice Roberts joined the liberals, without being carried by Justice Kennedy on the Obamacare case. This decision alone would not be trend-inducing, if not for the fact that Chief Justice Roberts joined the liberal Justices and Kennedy in the 5-3 decision (Justice Kagan recused) in the Arizona v. United States decision earlier this week. Effectively, Chief Justice Roberts has made himself a second swing vote and demonstrated that he is willing to eschew his conservative heritage without Justice Kennedy in his wings. In the upcoming term, the Supreme Court will decide Fisher v. Texas, an affirmative action case, is likely to hear a case on the constitutionality of certain provisions of the Defense of Marriage Act, and is likely to hear arguments on the constitutionality of key provisions of the Voting Rights Act.
Prior to this week, most legal pundits, including myself, would have contended that all of these progressive measures stood a slim chance of surviving. In fact, we would have hung our hats solely on the grace of Justice Kennedy. However, after a whirlwind week on the Supreme Court, litigators arguing before the Court and pundits commenting on the Court will not only vie for the attention of Justice Kennedy, but also the attention of Chief Justice Roberts.
As it stands now, there are three devout conservative justices (Scalia, Alito, and Thomas), four devout liberal justices, (Ginsburg, Breyer, Kagan, and Sotomayor), and now two swing votes (Kennedy and Roberts). In fact, based on this new lineup, liberal arguments stand a better chance, only having to convince one of the two swing votes to agree with their opinion. Before my liberal colleagues get too excited, I am not suggesting that the Roberts Court is on its way to becoming the Warren Court that gave us Brown v. Board, but I am suggesting that the odds look a lot better for the progressive agenda than it did last week. So while everyone spends the day parsing the 193 page Obamacare decision, don’t miss the forest for the trees, the real story is that the Supreme Court is back in play.