Chief Justice John Roberts knows this is his hour. Like it or not, the legal challenge to President Barack Obama's health reform law to be heard for three days starting Monday will define the legacy of the Roberts court.
If the court's five-justice conservative majority votes to overturn the individual mandate in the Affordable Care Act it will be remembered as an act of rank political decisionmaking and judicial activism. Unambiguous, long-standing legal precedent exists to uphold the law. But there is no sugar-coating what it will take for that result: an intellectually honest court.
The focus of this case is not individual liberty. It is easy to get confused since the premier issue before the court is whether Congress can tell people that they must have health insurance or pay a tax penalty. But remember, Mitt Romney, as governor of Massachusetts, imposed essentially the same individual mandate that exists in "ObamaCare" on Bay Staters in his "RomneyCare."
So if you have stuck in your craw the idea that government can't force people under any circumstances to buy a product they don't want from a private company, forget it. Massachusetts is doing it under its police powers, as could any other state. And the federal government did so in 1792 when it told every white male of a certain age to buy a musket or rifle and ammunition. President George Washington signed the militia measure — indicating that the founders were not averse to forcing commerce on the populace.
The case before the Supreme Court is a federalism dispute: whether the federal government has the power under the Commerce Clause to impose a health insurance regulation that would otherwise be the province of states.
For 70 years the Commerce Clause has been interpreted by the high court to grant the federal government sweeping power to regulate how parts of our national economy operate. Since health-related spending constitutes 17 percent of GDP, the broad subject easily impacts interstate commerce. But does a family's decision to go without health insurance and essentially self-insure for medical needs and emergencies impact interstate commerce?
Two now well-known cases demonstrate that the answer is "yes." In the 1942 case of Wickard vs. Filburn, the court affirmed the Commerce Clause power of the federal government to tell farmer Roscoe Filburn that he couldn't grow wheat for personal consumption beyond a government quota. Part of the court's rationale was that Filburn's inactivity, the act of not buying wheat on the open market, if aggregated with others who would do the same, would substantially affect interstate commerce.
In the 2005 case of Gonzales vs. Raich, the court cited Wickard in giving the federal government the power to outlaw the home growing of medicinal marijuana for personal consumption even in states that permit it. Conservative Justices Anthony Kennedy and Antonin Scalia helped make up the majority.
Roberts, who wasn't on the court then, said in his Senate confirmation hearing that he had "no agenda to overturn" the precedents of Raich or Wickard.
Well, applying those precedents to the choice of Americans not to buy health insurance easily demonstrates that it impacts interstate commerce. In 2008, uncompensated care for the uninsured cost $56 billion to $73 billion, much of it for free hospital care, according to the U.S. Department of Health and Human Services. And since sooner or later nearly everyone utilizes health care, with the uninsured shifting costs to others, the federal government may create a rational national scheme to pay for it.
In the opinion of legal experts and court-watchers asked for their predictions in an American Bar Association report, the court will uphold the individual mandate 6-3, with Roberts and Kennedy joining the court's four liberals. That would be a serviceable showing of impartiality.
But if the principle of stare decisis is ignored to upend health care reform by a 5-4 vote along ideological lines, the Roberts court will be marked as baldly partisan, a manservant to politics rather than the law. Roberts can't possibly want that permanent tattoo for himself or the court that bears his name.