Roberts and Ginsberg: Strange Bedfellows

No, I’m not trying to start any rumors with the title of this post!

On Thursday, Chief Justice John Roberts delivered the opinion of the Supreme Court on the constitutional challenges to the Affordable Health Care Act (ACA, known colloquially as “Obamacare”) in National Federation of Independent Businesses v. Sibelius.  The ruling was disappointing to many Republicans, including me, in that one key provision of the law was found to be constitutional: namely, that the government can force you to buy health insurance.

The U.S. Constitution was designed to limit the federal government’s power, and to many conservatives, this appears to be a new power of the government to compel individuals to engage in commerce.  Roberts, however, ruled that the government was giving people a choice: to buy health insurance, or to pay a tax.  In framing the decision in this way, Roberts was able to uphold that portion of the Affordable Care Act while still limiting the federal government’s power over the decisions of individuals.  Normally it would be hard to find much solace in that, since it still represents an encroachment on liberty, but given the historical encroachments of federal authority over the States and the People, some conservatives (e.g., George Will) see the Roberts decision as establishing an important precedent.

And indeed, lost in the media and Democrat cheering in the wake of the decision (coming to activist t-shirts and placards near you, the tweet of the Democratic National Committee’s Executive Director Patrick Gaspard: “It’s constitutional, bitches!”), the Roberts Court did strike down the provision of the ACA that would have cost states their entire Medicaid funding if they refused to expand their Medicaid coverages.  Given that 26 states took part in National Federation of Independent Businesses v. Sibelius, it’s a good bet that many states will now refuse to expand Medicaid, and that this will seriously compromise the ability of the ACA to operate.  It may yet die of its own financial unsupportability (one can only home it does so without taking the entire country with it).

With regard to the Medicaid portion of the decision, the ruling was 7-2 (Ginsberg and Sotomayor were in favor of the federal government’s ability to coerce the states into complying with the Medicaid expansion).  This puts Roberts and Ginsberg on opposite sides of that opinion, which makes perfect sense.  With regard to upholding the constitutionality of the Individual Mandate, the ruling was 5-4.  Here, Roberts and Ginsberg end up on the same side.  That makes them “bedfellows”.  What prompted this post is to explain what makes them “strange” bedfellows.

The opinion is 193 pages, quite long for a Supreme Court ruling.  Excepting the summary statement at the beginning (the Syllabus, in legal-speak) and a 2-page addendum to the dissent filed by Justice Thomas, the opinion consists of three main parts:

  • The majority opinion, delivered by Chief Justice Roberts (59 pages)
  • A partly concurring opinion, delivered by Justice Ginsberg (61 pages)
  • A dissenting opinion, delivered by Justices Scalia, Kennedy, Thomas, and Alito (65 pages)

Justice Ginsberg’s opinion in legal-speak, is “concurring in part, concurring in judgment in part, and dissenting in part.”  In everyday language, this means that Justice Ginsberg is saying “I agree with you, Chief Justice, that we should uphold the Individual Mandate, although I only partly agree with your logic.  And I disagree with you about the Medicaid portion of the ruling.”  If we just consider the Individual Mandate portion of the ruling (the part in which Roberts and Ginsberg are bedfellows), it is the “partly agree with your logic” aspect of her opinion that makes them strange bedfellows indeed.

If you look at the judgments, this was a 5-4 ruling in favor of the Ginsberg wing of the Court.  (Justice Ginsberg is the most senior of the justices commonly considered to represent its liberal wing.)  If you look at the way in which the ruling was reached – the very method by which the justices go about thinking about a case and explaining their rulings – this was a 5-4 ruling in favor of the Scalia wing of the Court (Scalia is the most senior of the justices considered to represent its conservative wing).  (For simplicity, I will from here on talk about the dissenting opinion as if it was authored by Scalia, though all four justices signed that opinion.)

That is, Roberts and Scalia look like they are talking about the same things.  Ginsberg appears to be talking about completely different issues.

On the mandate, the liberal point of view “won”.  (I think I am justified in calling this the liberal point of view, given that the ACA was supported by all but 34 Democrats in the House and Senate and by no Republicans in those bodies.)  As seems to be so common, liberals care about winning more than they care about principles – they are the “radical” party, the one that favors action over inaction, the one that favors getting something done now and worry about the consequences later.  (I’m quite sure this statement will be objected to by people of the left; I have found it to be an amazingly useful generalization in understanding left-right differences – including this Supreme Court decision.)

Ginsberg’s opinion is all about the short term consequences.  We have a health care crisis.  Congress is trying to fix it.  The Supreme Court cannot get in the way of progress and changes the Founders couldn’t predict.  Roberts and Scalia, though they reach different judgments, both frame their entire arguments about the long-term issues: what is the relationship between the federal government and the people?  How might precedents set about governmental power lead to unanticipated consequences later, and how do those consequences affect individual liberty?  What is the appropriate role of the Supreme Court vis-a-vis the Congress, particularly in cases in which only part of a large law is unconstitutional?  Does it represent “legislating from the bench” to throw out a whole law with some unconstitutional aspects, or is there actually more damaging usurpation of legislative power when the Judiciary allows only parts of an interoperating whole to stand?

Reading the entire 193 pages, with Ginsberg’s screed pressed in the middle, one is filled with an overwhelming sense of the differences in worldview of the Court’s liberal and conservative wings.  While the media and the Democratic Party would have inundated us for months with how “political” the Court has become had the ACA been thrown out, one is struck in reading the actual opinion how political Ginsberg’s concurring was, and how non-political Robert’s opinion was.  Scalia’s opinion was largely non-political as well, but in fairness it is hard to miss his occasional jabs, such as calling out the “Louisiana Purchase” (one of several minor provisions in the ACA that favored certain legislative districts to curry favor with on-the-fence Democrats).  Still, my point is that the rationale behind Ginsberg’s opinion was political, whereas the rationale of both the Roberts opinion and the dissent was not political – it was structural.

Let me be specific.  The very third paragraph of the Roberts opinion frames the constitutional ground in which the decision must be reasoned:

In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder. Nearly two centuries ago, Chief Justice Marshall observed that “the question respecting the extent of the powers actually granted” to the Federal Government “is perpetually arising, and will probably continue to arise, as long as our system shall exist.”

Justice Ginsberg, on the other hand, chooses to open her analysis of the case with the following:

The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s.

She emphasizes that health care is a national issue – inviting us to conclude that this is a problem for the federal government to solve simply because the issue is national.  This conflates the magnitude of a problem with the level of government that should address it.  She also signals in this opening statement that she is quite comfortable with the enlargement of federal authority, linking the ACA to the New Deal programs of the 1930s.

Roberts next takes up the question of what federal powers are enumerated in the Constitution, and makes specific mention of key clauses in the Constitution which have been exploited to expand the reach of federal authority:  for example, the Necessary and Proper clause, which authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”.  Roberts then notes that the Court has historically been reluctant to rule that a law is improper or unnecessary, leaving that judgment to Congress, with full understanding that Congress, and not the Supreme Court, is most answerable to the People, in whom the final authority rests.  A Court decision that some law fails the Necessary and Proper test may not be undoable for decades, whereas the People’s decision that some law fails the Necessary and Proper test can be enacted in the very next election, at most 2 years away.  Having said that, Roberts then takes up the other side of the coin, and reinforces the point that the Supreme Court nonetheless does have an important role to play in our system of checks and balances, and cannot “abdicat[e] in matters of law” – the Court cannot allow laws that unquestionably fail the constitutional test to stand.  Doing so would be an abdication of the Court’s responsibility.

This, to me, is the job of the Supreme Court – to defend our system of government, whose checks and balances, codification of civil rights, and ultimate sensitivity to the will of the People has been the most successful system in the history of the world in minimizing abuses of power while preserving liberty, happiness and general welfare.  That Justice Ginsberg (a one-time functionary in the misnamed American Civil Liberties Union) and that liberals generally do not understand the merits of this system is one of the most important insights one can make in understanding leftist thinking.

And so let’s turn to Justice Ginsberg’s opinion again.  The opening section of her argument marshals a host of statistics on health care coverage to make the point that our system is in crisis and that a solution must be sought by our elected officials.  It is, in other words, an argument one might prepare in order to stimulate legislative work on something like the ACA – it is a political position paper if anything is.  Justice Ginsberg, it goes without saying, is an enormously intelligent person, and as such she is able to make a compelling case that something needs to be done about the problems in our system of health care/health insurance.  But her argument seems to be that because we have a big problem, Congress has the authority to do whatever it deems necessary in order to solve the problem.  Justice Scalia answers this brilliantly in the dissent:

Article I contains no whatever-it-takes-to-solve-a-national problem power. – Scalia, Kennedy, Thomas, and Alito, dissenting opinion in National Federation of Independent Businesses v. Sibelius.

I can imagine what my leftist Professor friends might say at this point.  They might cheer Justice Ginsberg’s argument, and denigrate the arguments of Roberts and Scalia.  Their hero is actually talking about the problem.  What is this case all about if not the health care crisis in America?  How can you rule on the ACA without talking about how many people are uninsured, or how expensive premiums have become, or how emergency care for the uninsured burdens the rest of the system?  Isn’t this just another example about how conservatives have no solutions, and how they don’t really even care about sick people or poor people?

My response is: this case is not about the health care crisis in America.  Like all Supreme Court cases, this case is about the powers of the federal government and the interaction of the federal government with the other governments (and the People) in the United States.  If you believe (as Justice Ginsberg and the rest of the liberal wing appear to believe) that this case is about the health care crisis in America, then you believe that the Supreme Court should be dealing with political issues, and that the body least-responsible to the People becomes a political body.  In other words no, it is not evidence of conservative malfeasance and heartlessness, it is an example of liberal unconcern for abuse of power and in favor of win-at-all-costs.  It’s another example of how laughable media and left-wing pronouncements are that the conservative wing of the Court is political, when the opposite is so clearly the case.

The good news for conservatives, then, is that we needn’t fear that Chief Justice Roberts is another Souter or Stephens, recent Justices named by Republican Presidents who became staunch members of the liberal wing of the Court.  One need only look at the reasoning applied in his decision.  While one might disagree with the reconception of the Individual Mandate as a tax and agree with the dissenting opinion that such a reconstrual is tantamount to rewriting the ACA from the bench, Roberts’ opinion illustrates that he attacks constitutional questions from a systemic, structural perspective rather than a political one.  That means our side will lose future close cases, something we have gotten used to thanks to rulings by clearly systemic, structural conservatives like Justice O’Connor and Justice Kennedy.  But that’s okay – the political battles really should be fought in Congress, and in elections.  The battle to maintain freedom and our system of government, though, must be something we never allow the Supreme Court to abdicate.

In this, I am gratified to read the words of the dissenting opinion, which I can appreciate without feeling the same sense of sadness felt by Scalia, Kennedy, Thomas, and Alito (because I think the thinking in the Roberts opinion was nonetheless conservative in spite of its judgment):

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections – notably, the restraints imposed by federalism and separation of powers – are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.


  1. jgreendc · · Reply

    Nicely done! How would you apply this line of thought to another controversial decision such as Citizens United?

    1. Thank you. I have never read the Citizens United decision so I can’t comment. It may certainly be worthwhile to do so given how often it will be referred to this election cycle. Thanks for the prompt.

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