Decisions of the United States Supreme Court are not the normally the stuff of
op-eds in Israeli newspapers. Yet there are aspects of the court’s ruling last
week on the Affordable Healthcare Act (Obamacare) that highlight how different
the approach of the Israeli Supreme Court, particularly under court presidents
Aharon Barak and Dorit Beinisch, is to its in counterpart the US.
Justice John Roberts’s ruling was clearly driven by a desire to protect the
legitimacy of the US Supreme Court as something other than a purely political
Critics of the ruling have charged that he was intimidated
by thinly veiled threats from President Barack Obama that he would run against
an “activist” Supreme Court if Obamacare was found unconstitutional, a line of
attack frequently echoed in the liberal media in the months leading up to the
It has been widely reported that the chief justice switched his
vote from the way he sided in the initial judicial conference following oral
arguments. That is borne out by an analysis of the dissenters’
Their opinion appears to address the issue of severability
(would striking down the healthcare mandate require striking down the entirety
of the Affordable Healthcare Act?), an issue rendered moot by the final decision
upholding the healthcare mandate. That suggests Roberts was originally part of a
majority to strike down the healthcare mandate, but differed with the four
dissenters over whether the entire Affordable Healthcare Act must be struck down
as a consequence.
I was schmoozing with Prof. Randy Barnett, one of the
principal theoreticians of the legal effort to have Obamacare declared
unconstitutional, at a Jerusalem conference in honor of Milton Friedman’s
centennial in late May, when he received disturbing news from
I now believe those perturbations from afar concerned
Yet I think it would be hasty to conclude that Roberts
Shortly after his first term as chief justice, Roberts
told Jeffrey Rosen, legal correspondent for The New Republic and a professor at
Georgetown Law School, that he would do everything in his power to prevent
five-to-four decisions, broken down according to the party of the president who
appointed the justices, in the most significant cases. The five-to-four
party-line vote in Bush vs Gore, which finally settled the 2000 election result,
unquestionably made the court look more political and exacted a cost in its
legitimacy. And Roberts signaled that he wanted to avoid future such
The issue of the high court’s legitimacy never much troubled court
president Barak or his successor; they simply assumed that their fiat was
legitimate, and in that received the support of a largely compliant
Barak was not much given to judicial modesty or any form of
deference to the elected branches. He boldly turned the Israeli High Court into
the final arbiter of all societal norms by abandoning all traditional doctrines
of judicial restraint, such as standing and justiciability. “Everything
is justiciable” (even troop deployments in wartime), became his rallying
Roberts emphasized several times in his opinion that the Supreme
Court lacks the expertise to pass on government policy or legislative wisdom.
Nor, he wrote, is it the job of the Supreme Court “to protect the people from
the consequences of their political choices.” In other words, the judge’s role
is not to pass judgment on the policy-making of the legislative and executive
Again, that modesty did not characterize the Israeli Supreme
Court under Barak and his acolytes. Employing the standard of “reasonability,”
they assumed the authority to pass on the wisdom of every government decision,
and in the process turned themselves, in former court president Moshe Landau’s
words, into a court of “Platonic guardians.”
Finally, Roberts’s opinion
showed a keen sense of limitations imposed by American federalism. He even
succeeded in persuading two members of the Supreme Court’s liberal wing –
Justices Stephen Breyer and Elena Kagan – to join a seven-to-two majority in
favor of striking down a provision that would have allowed the federal
government to force states to share in the cost of the expansion of Medicaid
under Obamacare by threatening them with the loss of all Medicaid funding if
they did not.
True, Israel does not have a similar federal system, but as
court president, Barak never acknowledged any form of checks and balances
between the various branches of government.
Rather, he and Beinisch
always insisted on the “independence” of the judicial branch, including its
authority to control appointment of new members to the High Court, and labeled
any criticism of its jurisprudence, even that of legal luminaries like Landau,
Ruth Gavison and Daniel Friedmann, as an assault on the “rule of
DOES ROBERTS’S conservative judicial disposition – to which I am
obviously sympathetic – mean that his decision on Obamacare was a good one?
His institutionalist concerns are proper. The great
constitutional scholar Alexander Bickel famously referred to the United States
Supreme Court as “the least dangerous branch,” in a book by that name. And he
celebrated various legal doctrines by which the Supreme Court avoids
interjecting itself in the most contentious political issues – e.g. the
political question doctrine, standing and justiciability.
But once the
issue is joined in a concrete “case or controversy,” the court must at least
give a plausible reading of the constitutional and legislative texts in front of
That Roberts failed to do. Not because he is not a brilliant jurist,
but because he was determined to reach by hook or by crook a certain result to
avoid having a five-to-four majority strike down Obama’s signature legislative
achievement. And that kind of outcome-based jurisprudence also makes the court
political in a different way.
Roberts, together with the four dissenters,
rejected the claim that the Obamacare health mandate requiring citizens to
purchase insurance or pay a penalty for their failure to do so could be
justified under the Constitution’s Commerce Clause. The Commerce Clause, he
wrote, gives Congress the authority to “regulate” commerce already taking place,
not to require participation in commerce through the purchase of healthcare
For this he was fulsomely praised by a number of prominent
conservatives – Charles Krauthammer, George Will and Randy Barnett. The latter
consoled himself that Roberts had saved the Constitution by enunciating a much
more limited view of the Commerce Clause and placing constraints on Congress at
odds with “how most law professors viewed constitutional law” prior to the
court’s decision. In a similar vein, George Will praised the chief justice for
having restored a certain constitutional consciousness – an awareness that while
the Constitution expanded the powers of the federal government from those under
the Articles of Confederation it only confers on Congress certain enumerated
powers. And enumerated powers necessarily imply that Congress lacks all those
powers not enumerated.
That praise is more than a tad generous. The only
specific case that he ruled beyond congressional authority under the Commerce
Clause was where Congress mandates commercial behavior rather than regulating
existing behavior. All the rest is non-binding dicta that does nothing to
elucidate the limits of congressional power.
And on the single exercise
of power that Roberts explicitly found beyond Congress’s authority under the
Commerce Clause, he found the authority to achieve the exact same result under
the congressional power to “lay and collect taxes.” In an exercise of legal
legerdemain, he determined that the “penalty” under Obamacare could be called a
Though the line between the two is not always a bright
one, they are not the same, and the distinction has been developed in a long
line of Supreme Court precedents.
The purpose of the penalty was not to
raise revenue but to compel purchase of insurance. The preference of the
drafters was that everyone purchase insurance and no one pay the penalty, i.e.
that no revenue be raised.
Congress knew very well what it was doing in
drafting the health mandate with a penalty. It explicitly rejected an earlier
draft that would have imposed a “tax” on those without health insurance on the
quite sensible grounds that such a bill could never have passed.
addition, Yuval Levin points out, a considerable body of social science research
indicates that whether one labels something a penalty or a tax has significant
effect on behavior. Penalties for failing to fulfill some legal obligation – in
this case, to purchase insurance – are much more effective in compelling
compliance than “taxes” on not doing something. In the former case, one bears
the stigma of illegality; in the latter, one is merely exercising one of two
Finally, Roberts’s conclusion that what Congress may
not do under the Commerce Clause, it may do pursuant to its taxing power, makes
Congress can only tax in pursuit of a legitimate purpose
under some other clause of the Constitution. Prof. Richard Epstein points
to a line of precedents that what Congress cannot do under the Commerce Clause
it may not do via coercive taxes.
ONE SALUTARY effect of the result,
however, is that the ultimate verdict on Obamacare will be rendered in November
by the American people, and that is the preferable result in a democracy. A
significant majority of Americans in all polls have consistently favored repeal
of the entirety of Obamacare, and healthcare is the area in which Obama’s
negative rating is highest.
If the Supreme Court had struck down
Obamacare in its entirety, it would have largely ceased to be an election issue.
Those who like Obama personally but hate Obamacare could have voted for him
knowing that he will not again have the congressional majorities necessary to
push through another such a monstrosity.
Now, they have to choose. If
they want to get rid of Obamacare, they must elect a Republican majority in the
Senate and Mitt Romney as president. If they fail to do so, then they have only
themselves to blame for the consequences.
The writer is director of
Jewish Media Resources, has written a regular column in The Jerusalem Post
Magazine since 1997, and is the author of eight biographies of modern Jewish