ObamaCare and the saddest kind of dissent

Judges write dissenting opinions for all kinds of reasons — to create a roadmap for future challenges, to register their protest, or to persuade their colleagues over time. The best dissents are the ones that never see the light of day because they are so persuasive and they become the majority. And perhaps the saddest are those that began as a majority opinion but ultimately lost the majority. As the Supreme Court prepares to hear oral argument in its seventh case involving the Affordable Care Act, it’s worth looking back at the joint dissent in the original ObamaCare challenge, NFIB v. Sebelius, which legend has it began as the majority opinion.

The plaintiffs’ theory of the case was straightforward: For decades, the Supreme Court had expansively read the Commerce Clause, allowing Congress to prohibit economic activity if it had a substantial effect on interstate commerce, even if it was wholly intrastate and not even commercial in nature. But ObamaCare’s individual mandate — the requirement that people purchase health insurance — was a bridge too far. If Congress had the authority to regulate your decision not to buy health insurance and force you to do so, it could force you to do pretty much anything because any inactivity — in the aggregate — affects interstate commerce.

Coming out of the oral argument in March 2012, those of us who sided with the challengers felt optimistic. Several justices, including perennial swing vote Anthony Kennedy, seemed inclined to invalidate the individual mandate for exceeding Congress’s power to regulate interstate commerce.

Immediately following the oral argument, there was a persistent campaign to lobby the Supreme Court — and Chief Justice John Roberts in particular — to consider the “legitimacy” of the institution. For months leading up to the opinion’s release, President Barack Obama, Sen. Patrick Leahy (D-Vt.), the New York Times and the New Republic, to name a few, warned it would be unwarranted judicial activism if the Supreme Court were to overturn a “duly enacted” law.

And then the opinion dropped. It was the end of June and the final day of the Supreme Court’s term. CNN and Fox News initially reported that the individual mandate had been struck down, but alas, their reporters simply hadn’t read far enough into the opinion. Chief Justice Roberts and Justices Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito agreed that the individual mandate was not a valid exercise of Congress’s commerce power. But that was not the end of the matter. In a shocking twist, Roberts construed the mandate as a tax, over the vigorous dissent of the four conservatives. In a joint dissent, Scalia, Kennedy, Thomas and Alito did not mince their words, declaring:

“The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. … The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching.”

As the dust settled, court watchers started to speculate that Roberts may have changed his vote. People began searching for clues in the majority opinion by Roberts, the joint dissent, and the partial concurrence/partial dissent by Justice Ruth Bader Ginsburg. And then a leak sprung, confirming that Roberts had, in fact, changed his vote and Kennedy had led the charge to try to persuade Roberts back to their side.

We may not know for years to come why Roberts changed his vote. Was it the lobbying campaign that wore him down? Was he concerned about the Supreme Court’s legitimacy? Was he convinced that the mandate was a tax?

This last question is central to the latest challenge to ObamaCare. In California v. Texas, the justices will consider whether the individual mandate is still a tax even though it now lacks the defining feature of a tax: raising revenue. In 2017, after Republicans won control of both houses and the presidency, Congress set the individual mandate “tax” at $0. And this led to a renewed effort to bring down ObamaCare.

Is a tax still a tax if it doesn’t raise any revenue? Or did the individual mandate turn back into a penalty and, therefore, an unconstitutional regulation of inactivity under the Commerce Clause? And if it is a penalty, does that mean the whole law must fall, or will a majority of the Supreme Court blue-pencil the statute to remove the mandate? Will this be the ObamaCare case to end them all, or will it lead to another sad dissent?

Elizabeth Slattery is a senior legal fellow and Anastasia Boden is a senior attorney at Pacific Legal Foundation. They’re the hosts of Dissed, a podcast about dissents at the Supreme Court. Check out this episode about NFIB v. Sebelius.