With a decision on the Affordable Care Act’s mandate looming, Chief Justice John Roberts has a rare opportunity. He has the ability to uphold the individual mandate as constitutional while breaking from his obviously politically motivated peers on the right wing side of the bench. In doing so he would virtually guarantee historical legitimacy to his tenure as Chief Justice. If he decides to side with Justices Alito, Scalia, Thomas, and in all likelihood Kennedy, he will delegitimize the court by overreaching the court’s authority of strinking down only clearly unconstitutional statutory law. The court must as a matter of course begin any deliberation with the assumption that a properly passed congressional act is constitutional. If the court does in fact determine that a law is to be struck down, it must do so using clear and unquestionably sound legal reasoning. The court simply can not meet this standard in this case.
While it is true that Chief Justice Roberts owes his very career to those now seeking to invalidate specific provisions–if not the entirety–of Obamacare, his legacy as Chief Justice of the most respected and powerful court in modern history also hangs in the balance. He must certainly be cognizant of the depth of the consequences his decision will have, exclusive of any of the practical affects his decision will have on the health insurance and health care markets.
Justices Scalia and Thomas cemented their legacy as tools of the right wing long ago, and quite frankly I would bet that they welcome that reality. But this isn’t the Scalia Court, it is the Robert’s Court, and even if Justice Kennedy removes the burden of ultimate adjudication in this matter from him, a decision of no less gravity for his legacy will be required.
Talking Points Memo has further analysis here.