July 2, 2012 18:15 Age: 2 yrs

The Umpire-in-Chief Follows the Lead of the Great Chief Justice

By Robert A. Schapiro

Chief Justice John Roberts may want to impose new limitations on federal authority, but even more, he wants to remove the U.S. Supreme Court from the center of a political debate. In this respect, history serves as his guide.

The health care decision is reminiscent of the most famous decision in the history of the United States Supreme Court, Marbury v. Madison in 1803: At a time of great partisan divide, the political opponents of the president hail him before the Supreme Court of the United States, asserting that his government is abusing its authority. The presiding chief justice is an appointee of the prior president, who represented a different political party from the incumbent. Nevertheless, while upholding the key arguments asserted by the president’s opponents, the chief justice dismisses the challenge on unexpected grounds, thus removing the Court from a contentious policy debate.

So it was with Chief Justice John Marshall with Marbury v. Madison in 1803, as partisan disputes about the judiciary roiled the early Republic. So it is with Chief Justice Roberts with the Affordable Care Act in 2012.

In the health care decision, Chief Justice Roberts accepted the central argument that the “individual mandate,” the requirement to purchase insurance, exceeded Congress’s authority under the Commerce Clause of the Constitution. However, defying expectations, the Chief Justice held that the mandate survived as a valid exercise of Congress’s taxing authority.

Like his most famous predecessor, Chief Justice Roberts avoided a confrontation with the President by dismissing the case on narrow grounds. In threading his way through this political thicket, Chief Justice Roberts seemed guided as well by his prior professions of judicial modesty.

At his confirmation hearings, Chief Justice John Roberts famously invoked a baseball analogy. “Judges are like umpires,” he stated. “Umpires don't make the rules; they apply them.” He then emphasized the limited role of umpires, asserting, “Nobody ever went to a ball game to see the umpire.”

When it came to the Affordable Care Act, all eyes were on the umpires.

Seats at the oral argument before the U.S. Supreme Court were the hottest tickets in town. Fans were treated to a rare triple-header, three full days of arguments about the law, as opposed to the one hour usually allocated to a case. As the Court’s term concluded, the decision on the legislation was breathlessly awaited.

The health care decision thus presented two key questions: What are the rules governing the federal government and how broad a role would the umpires play when it came to the World Series of public policy debates?

The answer to the second question is clear. Chief Justice Roberts was determined to keep the umpires off the field of play. With regard to formulating new law, the answer will take longer to develop, but initial indications are for a modest impact at most.

Today, Marbury v. Madison is a monument to the limitations on presidential authority. It is remembered for the arguments that the chief justice endorsed, rather than for the president’s ultimate victory. Unlike Marbury, however, the decision on the Affordable Care Act seems destined to be remembered for what it did not do—strike down President Obama’s signature domestic policy achievement—rather than for any newly articulated legal principles.

A majority of the Justices concluded that Congress could not use its commerce clause power to force individuals to buy products. This issue is theoretically interesting, but as the opponents of the law vigorously argued, Congress has rarely if ever sought to invoke such authority. The Court also limited Congress’s ability to require states to undertake new federal-state partnerships by threatening to withdraw federal funds from existing state programs. Careful drafting of legislation, though, should allow Congress to continue to induce state cooperation in advancing federal priorities.

It is evident that Chief Justice Roberts is no fan of expansive federal power. In future cases, the Court may limit Congress’s ability to address social and economic concerns. Chief Justice Roberts ensured, however, that those debates would take place in another game before a smaller crowd. For the moment, he was satisfied with removing the focus from the umpires.

Schapiro is dean of Emory Law and Asa Griggs Candler Professor of Law.

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