Nine years ago today, in a 5-4 decision that surprised many observers, Chief Justice John Roberts joined the four members of the Supreme Court's liberal voting bloc to uphold the Affordable Care Act.
On June 28, 2012, when the U.S. Supreme Court narrowly upheld the Democrat' sweeping 2010 health care reform widely known as "Obamacare," Republican Party leaders immediately vowed to repeal it. Mitt Romney said that while the court may have found the act constitutional, "it didn't say that Obamacare is good law and good policy."
"Obamacare was bad policy yesterday, it's bad policy today," Romney added. "Obamacare was bad law yesterday, it's bad law today."
These days, liberals tend to admire Mitt Romney; certainly, the media fawns all over him. This wasn't the case nine years ago. At that time, his official residence wasn't in Utah, he didn't serve in the U.S. Senate, and he had friendly relations with Donald Trump -- who had endorsed him for president five months earlier in Las Vegas. ("Mitt is tough, he's sharp, he's smart," Trump said at the time. "Donald Trump has shown an extraordinary ability to understand how the economy works," Romney reciprocated. "It means a great deal to me to have the endorsement of Mr. Trump.")
Today is another story entirely. Romney's estimation in the eyes of Democrats and the press corps has increased in direct proportion to his antagonism toward Trump. Back in 2012, Romney's opponent wasn't Trump, it was Barack Obama, the incumbent U.S. president Romney was trying to unseat. When it came to the Affordable Care Act, however, Romney was in a delicate spot. "Obamacare" was modeled after "Romneycare," the Massachusetts state law signed by Romney when he was governor of the Bay State.
Chief Justice Roberts had a dilemma, too. When it came to the question of whether it was constitutional, the Affordable Care Act had an Achilles' heel that was glaring to "strict constructionists" -- conservative jurists who tend to take the Founders at their word: Obamacare's individual mandate seemed to run squarely afoul of the U.S. Constitution's "commerce clause."
Using creative legal reasoning, Roberts sidestepped this problem by declaring ACA's individual mandate a "tax," instead of an unconstitutional encroachment upon individual liberty. Roberts conceded in the body of his ruling that this wasn't the most obvious way to look at the mandate, but that court precedent suggested an out: "The question is not whether that is the most natural interpretation of the mandate," Roberts wrote, "but only whether it is a 'fairly possible' one."
Conservative legal scholars were furious and felt, as they had previously with high court appointments ranging from Earl Warren to David Souter, as though they'd been duped yet again during the nominating process.
But others were impressed:
"He's a guy trying to find the right constitutional arguments," Notre Dame University law school professor Richard Garnett told NPR's Liz Halloran. "He's able to confirm his commitment to federalism, and to look really closely at a piece of federal legislation, regardless of the party that produced it, and see if it is constitutional. That's to be admired, no matter what you think of the decision."
Yet while defending Roberts, there was a context to this litigation that liberal scholars did their best to ignore. In the run-up to the decision, Democrats had overtly politicized the legal challenge to the ACA. President Obama had shamelessly assailed the Supreme Court and served notice that an adverse ruling would engender further attacks.
So Roberts, at least in my view, was put in the position of trying to save an institution he cares about -- his own institution -- from being delegitimized. Writing on SCOTUSblog, UCLA constitutional law professor Adam Winkler gave the chief a tip of his cap for his efforts.
"With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there."
On a final point, if conservative scholars care about the doctrine of separation of powers -- and most of them do -- there was always an easier way to get rid of Obamacare: Elect Republican majorities in both houses of Congress and repeal it.
Carl M. Cannon is the Washington bureau chief for RealClearPolitics. Reach him on Twitter @CarlCannon.