Ronald Dworkin on the American health care case: Why Did Chief Justice Roberts Change His Mind?
NB: This article is based on the assumption that even the highest of judges must be subject to public criticism, and that their judgements are not above rational scrutiny.
The Supreme Court, by a 5-4 vote, has left President Obama’s Affordable Health Care Act almost entirely intact. So the United States has finally satisfied a fundamental requirement of political decency that every other mature democracy has met long ago, and that a string of Democratic presidents, from FDR to Bill Clinton, tried and failed to secure for us. We finally have a scheme for national health care provision that protects every citizen who wants to be protected.
The Affordable Care Act does not change America’s tradition of using private health insurance as the basic vehicle for financing medical care. The system it creates is therefore less efficient and rational than a single-payer system like Great Britain’s in which the national government employs doctors and hospitals and makes them available to everyone. But a single-payer approach is politically impossible now, and the Act erases the major injustices that disgraced American medicine in the past. Private insurers are now regulated so that, for example, they cannot deny insurance or charge higher premiums for people who are already sick. The Act subsidizes private insurance for those too poor to afford it, and extends the national Medicaid program so that it can provide care for all of the very poor.
But it is nevertheless depressing that the Court’s decision to uphold the Act was actually a great surprise. Just before the decision the betting public assumed, by more than three to one, that the Court would declare the Act unconstitutional. They could not have formed that expectation by reflecting on constitutional law; the great majority of academic constitutional lawyers were agreed that the Act is plainly constitutional. People were expecting the Act’s defeat only because they had grown used to the five conservative justices ignoring argument and overruling precedent to remake the Constitution to fit their far-right template.
It was Chief Justice Roberts, who had never voted with the liberals in a 5-4 decision before, who provided the decisive vote for upholding the Act. He said that the Act should be construed as a tax, and therefore valid because Congress has an undoubted power to “lay and collect taxes.” In an article for the next issue of The New York Review, I will describe and criticize his arguments and those of the other justices. Here, I will concentrate on why the Chief Justice voted as he did. There is persuasive internal evidence in the various opinions the justices filed that he intended to vote with the other conservatives to strike the Act down and changed his mind only at the very last minute. Commentators on all sides have speculated furiously about why he did so. One popular opinion among conservative talk-show hosts suggests that Roberts has been a closet liberal all along; another that he has suffered a mental decline.
Almost no one seems willing to accept Roberts’ own explanation: that unelected judges should be extremely reluctant to overrule an elected legislature’s decision. His own judicial history thoroughly contradicts that explanation. In case after case he has voted, over the dissenting votes of the liberal justices, to overrule state or congressional legislation, as well as past settled Supreme Court precedents, to reach a result the right-wing in American politics favored..
