Within minutes of the Supreme Court ruling upholding government subsidies for ObamaCare, the pundits turned their focus to John Roberts. The chief justice wrote the 6-3 ruling, and this is arguably the second time he has rescued the president’s health care law.
Yesterday’s ruling was on a narrower point—whether four words in the law could be read as invalidating the subsidies in states that have not created their own health care exchanges. Antonin Scalia led the dissenters in a blistering critique of what he said should now be called “SCOTUScare.”
Liberals hailed the ruling, and President Obama declared victory in the Rose Garden, while conservatives attacked the decision. But Roberts was at the center of the debate.
Former judge Andrew Napolitano, for instance, said on Fox: “With all due respect to him as a legal scholar and as the chief justice of the United States of America, he will continue to undermine his own credibility as a fair-minded jurist because he has reached to bizarre and odd contortions in order to save this statute twice.”
Rush Limbaugh said Roberts is “taking it upon himself to interpret this law politically, not reviewing it judicially.That equals the full politicization of the court.”
Prepare to see some pieces on how he’s “grown” in office.
Roberts has, without a doubt, led a conservative court. But his leadership in the two ObamaCare cases has some on the right feeling he has betrayed the cause.
But justices aren’t supposed to act out of political loyalty. When George W. Bush first nominated him to the court in 2005, Roberts likened himself to an umpire: “My job is to call balls and strikes, not to pitch and bat.”
Senator Obama, you may recall, voted against his elevation to chief justice.
It’s absurd to think that Roberts has suddenly emerged as a closet liberal. And yesterday’s reasoning seems straightforward to me: that despite the four ambiguous words, Congress didn’t intend to create a system where ObamaCare would provide no subsidies in states that refused to set up exchanges, leaving people ineligible for the federal exchange.
So if Roberts had come down on the other side of that question, would he have been a hero to the right and reviled by the left?
Obviously presidents appoint justices based on their philosophy, and in most cases (with some prominent exceptions) the jurists consistently vote in a liberal or conservative direction. But do even conservatives want justices who pursue political outcomes? Isn’t that the kind of hackery they criticize on the left?
To be sure, the Supremes live in the real world, and Roberts and the majority knew that more than 6 million people would have lost their subsidies if the ruling had gone the other way. But that also means the legal case needed to be awfully strong to justify blowing up the law.
I believe that Republicans are the indirect winners here. Had the court struck down the subsidies, the GOP would declare victory, but would also face a political crisis. Democrats would demand that they do something for the millions losing their health insurance, and the party’s leadership has no plan on the table. The media debate would shift from ObamaCare’s unpopularity to Republican heartlessness in allowing folks to be kicked off the rolls. Journalists would interview struggling parents worried about their children’s health.
Instead, Republicans can go back to denouncing the law and Hillary Clinton now has to defend it. The status quo endures.
Howard Kurtz is a Fox News analyst and the host of “MediaBuzz” (Sundays 11 a.m. and 5 p.m. ET). He is the author of five books and is based in Washington. Follow him at @HowardKurtz. Click here for more information on Howard Kurtz.
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