In testimony before the House Judiciary Committee today, former acting Solicitor General Walter Dellinger predicted not only that the Supreme Court will reject the meritless lawsuits challenging the Affordable Care Act, but also that the opinion will be written by conservative Chief Justice John Roberts:
I would wager that Chief Justice Roberts writes the opinion upholding the law. . . . He won’t want to say that the market alternatives are ruled out and you can only use monolithic government alternatives, he’s going to write an opinion to say that this is upheld—not because Congress can use its commerce power to impose affirmative obligations willy nilly to purchase products—but it [will be] upheld because of all the reasons we’ve said about the central role it plays in avoiding the displacement of costs onto other citizens.
As Dellinger points out, the lawsuits attacking the ACA do not question that Congress has the power to create entirely-government run health programs such as Medicare, so a Supreme Court decision striking down President Obama’s key accomplishment would have the strange result of requiring national leaders to reform the health system without allowing them to rely on this exclusively market-driven solution. That seems like a odd line for a corporate conservative like Roberts to draw.
Moreover, Roberts has shown little appetite for the radical vision of states rights which drives the challenges to health reform. In the Court’s most important federalism decision since he joined the Court, United States v. Comstock, Roberts joined the Court’s four moderates in refusing to roll back Congress’ power to ensure that federal laws function effectively. Roberts is also perfectly aware of the fact that radical states rights doctrines cut both ways, and many of the same tenther arguments that would kill progressives’ ability to fix the U.S. health system would also cut back on Roberts and other conservatives’ power to give corporations broad immunity from state law.
There are, of course, no good legal arguments against the Affordable Care Act. As Adam Serwer points out, however, there are political arguments against it. In a post Bush v. Gore era, there is always the risk that Roberts and his fellow conservatives will simply ignore everything that has come before them and dream up some tortured reason to strike down the law.
But there is good reason to believe that a purely cynical John Roberts would vote to uphold the ACA entirely because it will enhance his power to do the right-wing’s bidding. Most political commentators do not distinguish between corporate conservatives such as Roberts and tenther conservatives such as Justice Thomas, even though the two justices sometimes wind up on opposite sides of major constitutional cases. So if Roberts were to reject the ridiculous legal arguments against the ACA, such a vote would immediately be held up as proof that the Court is not the kneejerk servant of wealthy interest groups that Roberts has fought so hard to transform it into.
For years after Roberts did nothing more than turn his back on legal claims that border on frivolous, his corporate backers could cite his Affordable Care Act decision as proof that he is an honest and non-ideological judge. Roberts would then eagerly wield this political cover to enact the one agenda he cares most about — shielding powerful corporations from the law.