Editor’s note: James F. Simon, dean emeritus at New York Law School, is the author of “FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal,” published by Simon and Schuster.
(CNN) — With his opinion for a narrow majority of the Supreme Court, upholding major provisions of the Affordable Care Act, Chief Justice John G. Roberts Jr. has, for the first time since his confirmation as chief justice in 2005, breached the gap between the conservative and liberal wings of the court on a polarizing political issue.
In doing so, he has jettisoned his reputation as a predictable conservative vote on controversial issues, such as campaign finance reform and affirmative action, that have been decided by a divided court.
Chief Justice John Roberts, a conservative appointed by President George W. Bush, sided with the Supreme Court’s liberal wing on June 28 in upholding the controversial health care reform law. Roberts is seen here in 2005.
President George W. Bush meets with Roberts for morning coffee at the White House on July 20, 2005, a day after Bush first nominated Roberts for the Supreme Court to replace outgoing Justice Sandra Day O’Connor.
Justices file out of the Supreme Court building during funeral services for Chief Justice William Rehnquist on September 7, 2005. Following Rehnquist’s death, President Bush announced Robert’s new nomination to the position of chief justice.
As his wife Jane holds the Bible, Chief Justice John Roberts is sworn in by Associate Justice John Paul Stevens during a ceremony at the White House on September 29, 2005. Roberts became the 17th chief justice after the Senate voted 78-22 to confirm his appointment.
After taking the Supreme Court bench for the first time, Chief Justice Roberts leaves with his wife, Jane, and their children, Jack and Josie, on October 3, 2005.
A day after President Obama’s inauguration, Roberts re-administers the oath of office to Obama at the White House on January 21, 2009. At the official swearing in ceremony, Roberts misplaced a word in the oath and caused Obama to stumble over the recitation.
The Supreme Court justices pose for a portrait on October 8, 2010. At the top, from left, are Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito and Associate Justice Elena Kagan. From left on the bottom row are Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John Roberts, Associate Justice Anthony Kennedy and Associate Justice Ruth Ginsburg.
In a 5-4 ruling, the Supreme Court upholds all challenged portions of the health care law except for Medicaid eligibilty expansion, on June 28. In the majority opinion, Roberts said of the central element of the law, the individual mandate: “The federal government does not have the power to order people to buy health insurance. … The federal government does have the power to impose a tax on those without health insurance.”
Photos: Justice Roberts on the high court
Roberts, in finding the critical provisions of the Affordable Care Act constitutional, has followed the example of his predecessor, Chief Justice Charles Evan Hughes, who led the court during the tumultuous constitutional battles over President Franklin D. Roosevelt’s New Deal legislation. Hughes, like Roberts, sometimes found narrow grounds to uphold New Deal legislation and, as a result, cautiously steered the court away from the public perception that justices voted according to their political values, not constitutional principle.
Chief Justice Hughes, and now Chief Justice Roberts, demonstrated that they placed a high value on projecting the image of the court as a nonpartisan judicial institution that upholds the rule of law and is above partisan politics.
Hughes skillfully worked to promote the court’s public image as nonpartisan, not just in his narrow opinions, but, dramatically, in defending the justices against FDR’s attacks and his court-packing plan. Later, in grudging admiration, Roosevelt said that Hughes was “the best politician in the country.” That was hardly the way Hughes would have chosen to be remembered, but there was much truth in the president’s remark. In June 2012 it may be said that Chief Justice Roberts, like Hughes, has employed political as well as judicial skills in his role as the leader of the Supreme Court.
Roberts surprised almost everybody, including constitutional pundits and members of the Obama administration, when he announced Thursday’s decision upholding the Affordable Care Act’s most controversial provision, the individual mandate, under Congress’ power to tax. Judges on the lower federal courts who passed judgment on the Affordable Care Act, as well as both the challengers and defenders of the law in the Justice Department, focused their arguments on Congress’ authority to regulate interstate commerce.
The chief justice, after rejecting the administration’s Commerce clause argument, turned to the more general power of Congress to tax. And tellingly, he declared that the court was obligated to uphold a law as constitutional if there were reasonable grounds to do so, even if there were alternative grounds to strike it down. In this respect, the chief justice’s opinion was a model of judicial restraint, a term that has not frequently been used to describe the Roberts court.
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The chief justice pointedly wrote that the court did not pass judgment on the wisdom of the law, only its constitutionality. The distinction Roberts made between what may be wise, or even good public policy, and what the Constitution allows, has always been a hallmark of judicial restraint. When the Hughes court in the 1930s, led by four ideological conservatives, struck down major pillars of the New Deal, dissenters accused the justices in the majority of substituting their political judgment for that of popularly elected branches of the federal government.
Though Chief Justice Hughes sometimes voted with the court conservatives, he demonstrated, time and again, that he understood the distinction between the role of the political branches of the federal government and that of the court, which is obligated only to rule on the constitutionality of a statute. Today, Chief Justice Roberts, like Hughes (whom he is known to admire), has again struck a blow for judicial restraint and integrity.
As a result of Thursday’s decision, the ultimate fate of the Affordable Care Act does not reside with a majority of the life-tenured members of the court, but with the political branches of federal government and the American voters. In a representative democracy, this is exactly where the responsibility should be.
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The opinions expressed in this commentary are solely those of James Simon.