By Amy Davidson - I am glad that John Roberts, the Chief Justice, voted to uphold almost all of the Affordable Care Act. But the stance of humble gratitude toward Roberts that’s been assumed by many in the past day is beginning to be a bit much. This is especially true since the real hero of the day is Ruth Bader Ginsburg.
On the front page of the late edition of the Times Friday morning, there were four stories on the Supreme Court decision. One talked about Roberts’s “exquisite delicacy,” and how he “considers himself the custodian of the Supreme Court’s prestige, authority and legitimacy.” Ginsburg’s name didn’t appear before the jump in any of them; she only ever appeared in one, seventeen paragraphs in. Her picture and surname were in the infographic—all the Justices were there. There were four pull-quotes: two from Roberts, and two from the joint dissent from Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy.
And yet Ginsburg wrote what would have been the dissent—and a strong one—if Roberts had voted with the four conservatives to throw out the entire health-care law. Instead, her opinion concurred with Roberts when he said that the individual mandate was within Congress’s power to tax—this was the Constitutional loophole he found—but rejected his view that it wasn’t valid under the Commerce Clause, which gives Congress the power to regulate commerce. Ginsburg wasn’t gentle. She wrote that Roberts’s analysis was “rigid,” “crabbed,” and “stunningly retrogressive,” that it “finds no home in the text of the Constitution or our decisions” and made “scant sense.” There was also a mesmerizing dissection of the broccoli question. (Adam Gopnik has more on that, and Alex Ross has her favorite records.) Roberts’s view of the Commerce Clause, she wrote,
harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it…. It is a reading that should not have staying power.
“Staying power” is something that Ginsburg has.
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