Some other interesting Times reactions on the ObamaCare decision. In her Thursday post [1], former Supreme Court reporter Linda Greenhouse, who correctly predicted the ObamaCare legislation would be upheld, was pleased with the ruling. Yet she gave surprising credence to a conservative theory that Chief Justice John Roberts had been successfully "squeezed" by the liberal media into switching sides and upholding the law, as an attempt to erase what Greenhouse considers the partisan stench wafting from the Roberts' court.
[Roberts'] decision to call the mandate a tax and to provide a clearly reluctant fifth vote for upholding it as within the Congressional taxing power was a deeply pragmatic call that saved the Affordable Care Act. Certainly by no coincidence, it also saved the Supreme Court from the stench of extreme partisanship that has hung over the health care litigation from the moment more than two years ago that Republican state officials raced one another to the federal courts to try to erase what they had been unable to block.
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But he didn’t speak for the court in the entirety of his tax analysis. Instead, speaking only for himself, he acknowledged that he found it a stretch to call the penalty a tax. “The statute reads more naturally as a command to buy insurance than as a tax,” he said, adding that he would have upheld the mandate as a regulation of commerce if he thought the Constitution permitted it. “It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question,” he said – necessary because “we have a duty to construe a statute to save it, if fairly possible.”
This is where the seams of the chief justice’s opinion showed, leading to some speculation that the abrupt analytical pivot was actually a last-minute vote switch. For the theory that Chief Justice Roberts pulled back late in the process from declaring the mandate unconstitutional, the best evidence might be external to the opinion, rather than inside it. Around Memorial Day, a number of conservative columnists and bloggers suddenly began accusing the “liberal media” of putting “the squeeze to Justice Roberts,” as George Will expressed the thought in his Washington Post column. “They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional,” Mr. Will wrote. Although the court has been famously leakproof, Mr. Will and some of the others are well connected at the court, and I wondered at the time whether they had picked up signals that the chief justice, thought reliable after the oral argument two months earlier, was now wavering, and whether their message was really intended for him.
Friday's long masthead editorial found the editors pleased with Roberts' ruling, but not with his reasoning: "The Court and Medical Care – A moderate ruling with risks ahead [2]."
Politics deluged the court’s consideration of health care reform in the many briefs attacking the mandate and other parts of the law and in the intense three-day oral argument, when conservative justices asked questions that brought partisan politics sharply into the nation’s highest courtroom.
Fortunately, that did not keep the court from reaching the right result because Congress’s taxing power is even greater than its power under the commerce clause. But the change gives conservatives a major -- if not fully understood -- tool in their campaign to limit Congress’s efforts to solve problems with social and economic programs. This week’s victory carries the potential of defeat in the future.
More predictably, columnist Paul Krugman called opponents of ObamaCare cruel in "The Real Winners [3]." And did you know Krugman was one of the little people?
In short, unless you belong to that tiny class of wealthy Americans who are insulated and isolated from the realities of most people’s lives, the winners from that Supreme Court decision are your friends, your relatives, the people you work with -- and, very likely, you. For almost all of us stand to benefit from making America a kinder and more decent society.
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But what was and is really striking about the anti-reformers is their cruelty. It would be one thing if, at any point, they had offered any hint of an alternative proposal to help Americans with pre-existing conditions, Americans who simply can’t afford expensive individual insurance, Americans who lose coverage along with their jobs. But it has long been obvious that the opposition’s goal is simply to kill reform, never mind the human consequences. We should all be thankful that, for the moment at least, that effort has failed.