Republicans expressed shock and deep disappointment today after Supreme Court Chief Justice John Roberts wrote the majority opinion to uphold President Obama’s healthcare law.
“I’m disappointed in the result,” said Sen. Jeff Sessions (R-Ala.), a member of the Judiciary Committee who participated in Roberts’s lengthy confirmation hearings. “I think history may record that he was not right. I think he may have made a mistake.”
Sen. Mike Lee (R-Utah), a Tea Party favorite and member of the Judiciary Committee elected in 2010, said he was “shocked” Roberts found the law’s mandate that people buy insurance to be a tax.
“I disagree with it,” he said, adding that he was disappointed in Roberts.
Rep. Michele Bachman (R-Minn.), a leader of the Tea Party movement, blasted Roberts’s opinion as out of step with the Constitution.
“We’re profoundly disappointed in the decision from the court,” Bachmann told CNN while standing on the court steps.
“I urge people to read the dissent that was read from the bench by Justice [Anthony] Kennedy and joined in by Justices [Samuel] Alito and also [Antonin] Scalia because that opinion said very clearly, this was an activist court that you saw today,” she said. “What they did was not just uphold ObamaCare; this Supreme Court rewrote ObamaCare in line with its own design.”
Roberts was nominated to the court by President George W. Bush and received unanimous support from GOP senators, who felt blindsided when he voted to uphold a law they believed was on the verge of unraveling.
Roberts ruled that the Constitution’s Commerce Clause did not allow the insurance mandate, but that it was constitutional under Congress’s power of taxation.
Sessions said that while he did not regret voting for Roberts, he could not understand how the chief justice could reach his conclusion, particularly when the law’s authors argued it was not a tax during the congressional debate.
“This was sold as a mandate, they called it a mandate, it looked like a mandate and in oral argument [the solicitor general] came in and claimed it was a tax but I’m not sure the chief was right in concluding it was a tax,” Sessions said.
Rep. Allen West (R-Fla.), another prominent conservative voice, said the five justices who upheld the healthcare law were guilty of “a little bit of legislating from the bench.”
“Where does it end for Congress if we have this infinite power of taxation? That’s my concern,” he said.
But West declined to single Roberts out or say he was disappointed in the chief justice.
Likewise, Sen. Richard Burr (R-N.C.) said he was surprised, but did not fault the chief justice.
“I believe that this was something that the courts had the power to turn around, but I’m relieved at the fact that the courts made a very difficult decision. Their job is over with. They shouldn’t be criticized, nor should any one justice be criticized,” said Burr, who added he did not regret his decision to vote for Roberts.
Thursday marked the second time in a week Roberts sided with the court’s liberal justices in a landmark case.
On Monday, Roberts joined Kennedy and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor on a majority opinion striking down large portions of a controversial Arizona law designed to punish illegal immigrants.
His role in the healthcare and immigration decisions surprised many Republicans, who thought he was more closely aligned with the court’s conservative wing.
During his confirmation, Roberts told lawmakers he viewed the role of a judge as similar to that of an umpire.
“I will remember that it’s my job to call balls and strikes and not to pitch or bat,” Roberts said.
Some Democrats were also persuaded by his masterful performance during confirmation hearings. Half the Senate Democratic Conference voted for him, but then-Sen. Barack Obama (D-Ill.) voted no.
Sen. Lindsey Graham (R-S.C.), another member of the Judiciary Committee, said he was not surprised at all by Roberts’s opinion and said Republican colleagues should not be upset.
“They shouldn’t be. I’ve been saying for months that there’s no way this is constitutional under the Commerce Clause but if you look at it as a power to tax, it’s well within the power of the Congress,” said Graham. “What I’m furious over is the Democrats said this is not a tax increase during the political debate, and in the legal arena switched and said, ‘We’ll look at it as a tax.’ ”
Rep. Jim Jordan (R-Ohio) said he was dismayed Roberts sided with the court’s liberal justices.
“Disappointed. There’s no other way to say it. This is a day that is disappointing for freedom and disappointing for Americans. Plain and simple, there’s no way around it,” he said.
When asked if Roberts lived up to the pledges he made to Congress during his confirmation hearing, Jordan said, “It’s disappointing and frankly somewhat surprising, but you have to ask him what he’s thinking.”
Conservative opinion-makers were split in their reaction to Roberts.
“I am not going to beat up on John Roberts,” wrote Erick Erickson, editor of RedState.com, a conservative blog. “I am disappointed but I want to make a few points.”
Erickson argued that the ruling forces Republicans to take on the healthcare law as a high-profile political issue in the election instead of “asking the court to save us from ourselves.”
He also argued that while Roberts expanded Congress’s power to tax, he “curtailed the Commerce Clause as an avenue for congressional overreach.”
The conservative National Review magazine, however, chastised Roberts for rewriting the healthcare law.
In an editorial titled “Chief Justice Roberts’s Folly,” it wrote, “The dissent acknowledges that if an ambiguous law can be read in a way that renders it constitutional, it should be. It distinguishes, though, between construing a law charitably and rewriting it.
“The latter is what Chief Justice John Roberts has done. If Roberts believes that this tactic avoids damage to the Constitution because it does not stretch the commerce clause to justify a mandate, he is mistaken.”
Sen. Dianne Feinstein (Calif.), one of 22 Democrats to vote against Roberts in 2005, praised him for standing up to conservative critics.
“I’m surprised and delighted,” she said. “I do think it was a very brave decision by the chief justice. I think it’s important. I think the legacy of the court, up to this point – in the 5-4 votes – was that it was going to be a very political court. I think he made this on the basis of a non-political decision.”