Law prof: Chief justice, attempting to please, disappoints in ObamaCare ruling

John O'Brien Jun. 28, 2012, 11:11am



WASHINGTON (Legal Newsline) - A Northwestern University law professor says U.S. Supreme Court Chief Justice John Roberts did his best to keep the court from seeming like another political body - at the expense of federalism.

Stephen Presser, the Raoul Berger Professor of Legal History at Northwestern, said Roberts disappointed many when he joined the left-leaning justices in a 5-4 opinion released Thursday that upheld the Patient Protection and Affordable Care Act, or "ObamaCare."

The law was passed more than two years ago and requires individuals who do not purchase health insurance to pay a $695 yearly penalty.

"It seems to me that what he is trying to do is keep the court out of politics and refer the issue to the American people and to Congress," Presser said.

"There have been a lot of court critics after what they did in Bush v. Gore... that feel it diminished the respect the American people had for the court.

"I don't happen to agree with some of that analysis because I feel it was the right decision in that case, but Justice Roberts is not a man who wants to see the authority of the court diminished and see justices labeled as tools of a political party."

The court had received plenty of criticism that claimed it was another partisan entity in Washington over its 2010 decision that allowed corporations to spend company money on election advertising. Monday, it applied that decision in overturning a ban on that kind of spending in Montana.

Even Obama had gone out of his way to criticize the court in a State of the Union address.

Prior to the ObamaCare decision, most predicted a 4-4 split with Justice Anthony Kennedy the swing vote. Instead, Kennedy sided with the perceived conservatives, and Roberts found himself voting with the perceived left of the court - justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer.

Though five justices, including Roberts, agreed it is wrong for Congress to force an individual into a marketplace, another five, including Roberts, found the mandate to be a part of Congress' authority to tax.

"I don't know why it happened," Presser said. "The idea of kind of raising at the 11th hour this issue that everyone thought had gone away and using it as a solution to keep the court out of political thicket strikes me as disappointing."

Presser added that Roberts is "a brilliant guy" and "cares deeply about the court."

"His motives may have been completely noble, but the decision he rendered is disappointing. What we have here is an attempt to by the chief justice to craft an opinion that throws something at everybody.

"In the end, it does very little to preserve the constitutional structure. Now, the federal government's power seems virtually unlimited."

Presser said the court "punted" on the idea of Congress exceeding its authority.

"What happens in this decision is it takes the court out of the controversy," he said.

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