Thanking Justice Roberts

The usually reliably conservative Chief Justice John Roberts was skewered for his contorted opinion in National Federation of Independent Business v. Sebelius, which held that the "penalty" for not buying health insurance (the infamous individual mandate of Obamacare) was actually a "tax" and therefore constitutional.  There was a great wailing and gnashing of teeth from constitutional conservatives – and the dissenters led by Justice Scalia – who had hoped that the Supreme Court would put an end to the Affordable Care Act.  It was not to be so on that day in June 2012.  But watching the same Justice Roberts administer the presidential oath to Donald Trump made me reconsider: maybe there was a method to his madness after all.

As a brief recap of that decision, Chief Justice Roberts had retained the majority opinion for himself.  He found the ACA unconstitutional as far as the Commerce Clause was concerned (if Justice Ginsburg had written the opinion, it would have been far worse) and, while upholding the penalties as a valid exercise of the taxing authority, plainly stated that it is up to the body politic to make a decision on the wisdom of the law: "The Framers created a federal government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act.  Under the Constitution, that judgment is reserved to the people."

Jumping ahead to the closing months of the presidential election of 2016, there seemed to be a perfect storm of events interfering with the preordained election of Hillary Clinton.  There were the slow and steady email leaks, the on-and-off FBI investigations, her branding of much of the American population as "deplorable," the Clinton foundation corruption, and the Democratic Party's tone-deafness to the white middle class as it pandered to liberal voting blocs.  None of this prevented Hillary Clinton from being the frontrunner on the Democrat side, but she clearly was not able to put the race away.  Slowly, and then with increasing momentum, a national wave of devastating health care premium increases put Obamacare back into the political picture.  Not only did candidate Trump continue to promise to build the wall, end the erosion of good-paying jobs, fight Islamic extremism, etc., but he started to promise to repeal and replace Obamacare.

By any rational metric, Donald Trump should not have won.  It really took a perfect storm, and all its constituent components, to make him our 45th president.  The unpopularity and unsustainability of the ACA was certainly one of them.  The RNC could not have had a better election gimmick had they mailed bills to the general citizenry directly.  Whatever undecided or unmotivated voters remained were opening their health care premiums, trying to decide what they had to give up to maintain their health care, and reached the conclusion that this whole exercise into health care insurance was a tragic mistake costing them real money.  They broke overwhelmingly for Trump.

If Justice Roberts had remained true to his conservative credentials, the Supreme Court would have struck down the ACA.  There would have been an immediate political scramble to fix and reformulate it.  Republican assistance would have been necessary to help "fix" the law because of decreased Democrat numbers in Congress.  Republicans would have been labeled obstructionists if they did nothing.  If they had attempted to fix the law, their fingerprints would now be on it.  Either way, the Democrats would have a public rallying cry about the rascally white Republican men on the Supreme Court and why we needed to elect a Democrat in 2016 for those coveted Supreme Court appointments.

Had this decision been otherwise, we would have never seen what an abject failure the law would become, how high the premiums would go, how groups like the Little Sisters of the Poor would be bullied by the federal government, what a job-killer it would become, etc.  We would have been spared the realities of the law and left with only the rhetoric of how wonderful it would or could have been.

So, thanks to Justice Roberts, we were in a timely way reminded when we cast our ballots in 2016 that we the people are the ultimate judges under the Constitution of the wisdom of any particular piece of legislation.  We decided that the Affordable Care Act was unwise.  And we may not have had a President Donald Trump had Justice Roberts decided otherwise.

Chuck Volz is a community activist, an attorney, and an adjunct professor at University of Sciences in Philadelphia.  He can be reached at

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