In ho-hum era, Supreme Court manages surprise -- June 28, 2012 column

By MARSHA MERCER

Washington rarely surprises anyone these days – not in the age of Twitter, wall-to-wall media coverage and strategic leaking.

When the president or Congress acts, many of us react with a shake of the head. “Ho hum. There they go again.”

But the Supreme Court proved Thursday that government can defy conventional wisdom, baffle the big brains in the news business and keep a secret. It can even do the right thing.

In its most highly anticipated ruling in decades, the court upheld the constitutionality of the Affordable Care Act, President Barack Obama’s chief domestic achievement. The law will enable tens of millions of Americans to get health care. It reframes the 2012 presidential and congressional elections. And the announcement came off without even a drop of news in advance.

The ruling disappointed Republicans, buoyed Democrats and astonished everybody – even those covering the event.

“Supreme Court finds health care individual mandate unconstitutional” trumpeted Fox News. “Mandate struck down,” proclaimed CNN. Other news organizations grabbed the headlines and ran with them.

Except, of course, the court didn’t and the mandate wasn’t.

Virtually no one except the nine justices and some court employees sworn to secrecy imagined that Chief Justice John G. Roberts Jr., a staunch conservative, would join with the court’s liberal wing and be the pivotal figure in keeping “Obamacare” alive. The vote was 5 to 4.

The news media caught and quickly corrected the fast and spurious headlines, but the goofs reflect more than the hair trigger of today’s news business. Read 193 pages of opinion? Who can devote the time? Just spit it out in 140 characters.

But this 5 to 4 vote wasn’t a sports score. Roberts’ ruling was as thoughtful and complicated as it was significant. He first sided with the court’s conservatives in rejecting the Obama administration’s main claim that the individual mandate, which requires most people to purchase insurance in 2014 or pay a penalty, was permissible because the Constitution gives Congress the authority to regulate interstate commerce. That vote was also 5 to 4.

Then, Roberts wrote, the penalty “may reasonably be characterized as a tax.” Congress can tax and spend, he wrote.

And “it is not our role to forbid it, or to pass upon its wisdom or fairness.”

When the legal challenges to the Affordable Care Act were filed in 2010, most analysts thought the challenges were frivolous. Opinion shifted 180 degrees after oral arguments in March, when several justices asked tough questions of the government’s lawyer, solicitor general Donald Verrilli.

Before Thursday, the disappointment among the law’s supporters was so keen that the blame game for the law’s demise had already begun. The law’s supporters said Obama, a former constitutional law professor, and congressional Democrats should have realized the mandate would not pass constitutional muster.

It did, but not instantly.

Similarly, regarding Medicaid, the chief justice seemed at first to say the court was throwing out the law’s major expansion of the program that provides health care for the poor. Instead, the court left the expansion intact but stopped the government from pulling all existing Medicaid funds from states that choose not to participate in the expansion.

The health care ruling came as more Americans doubt the court’s even-handedness. In April, only 52 percent of Americans had a favorable opinion of the court, the lowest level in 25 years, according to a Pew Research Center survey.

Roberts, anticipating critics, emphasized that the court’s role was not to endorse or reject specific policies.

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions,” he wrote.

With polls showing many Americans disapprove of the mandate, Mitt Romney, the presumptive Republican presidential nominee, said the only way to get rid of Obamacare is to defeat the president in November. Romney promises to begin the process of repealing the law on his first day in office.

Meanwhile, congressional Republicans vowed to renew their efforts to repeal the law. A vote in the House is scheduled for July 11. It’s another show vote that will go nowhere in the Democratic-controlled Senate.

Ho hum. There they go again.

©2012 Marsha Mercer. All rights reserved.

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