In light of Thursday’s decision upholding the individual mandate, then-Senator Barack Obama’s 2005 speech opposing John Roberts’ nomination to the Supreme Court seems ironically prescient:
There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge…
The problem I face… is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult….
The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak….
I want to take Judge Roberts at his word that he doesn’t like bullies and he sees the law and the Court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.
The bottom line is this: I will be voting against John Roberts’ nomination. I do so with considerable reticence. I hope that I am wrong. I hope that this reticence on my part proves unjustified and that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court’s historic role as a check on the majoritarian impulses of the executive branch and the legislative branch.
The individual mandate case was a prime example of Obama’s “5 percent of cases that are truly difficult.” And sure enough, John Roberts sided with “strong” insurance companies (who are major supporters of the individual mandate) and “those in power” in the “executive branch and the legislative branch” against the comparatively “weak”: small business and the majority of ordinary voters who opposed the mandate and wanted it invalidated. In fairness, there were some “strong” interests on the anti-mandate side as well, most notably 26 state governments. But even they are not as powerful as Congress, the president, and one of our strongest industry interest groups combined. And, of course the one part of the law that Roberts voted to strike down was one that did not much benefit insurance providers, but did impose a burden on state governments.
I don’t actually believe that Roberts’ ruling was motivated by any great love for insurance companies or hostility to “the weak.” I think he genuinely bought the federal government’s tax argument, believed that upholding the mandate would improve the Court’s long-term reputation, or acted out of some combination of both motives. But it’s ironic that his ruling in this crucial case unintentionally fits Obama’s 2005 critique of his record.