Washington, DC (written by Brad Heath/USA Today) -- In the end, it was the conservative judge President Obama never wanted to see on the Supreme Court who saved his landmark health care law.
Chief Justice John Roberts delivered the opinion for a fractured court Thursday, joining the court's four liberal justices in upholding the central pillar of the health care overhaul, which requires that Americans have health insurance or pay a penalty. It was an unusual lineup for a court that often cleaves along predictable lines, and it put the usually conservative chief justice between two factions on the court with dramatically different views of how powerful the federal government should be.
Ultimately, though, Roberts may have offered some satisfaction to both.
"I think this is the week that it really became the John Roberts court," said University of California Irvine law school Dean Erwin Chemerinsky. "Up until now it had always been the Anthony Kennedy court," he said, referring to the justice who often casts the decisive vote in close cases, but who on Thursday joined the court's conservatives in a dissenting opinion arguing that the entire health care law should have been overturned.
The decision came four days after Roberts, who was appointed to the court by President George W. Bush, broke with the court's other conservatives to invalidate key parts of a controversial Arizona immigration law that the Obama administration had challenged.
Roberts' role in upholding Obama's signature policy achievement is particularly notable because Obama, as a senator, voted in 2005 to reject his appointment as chief justice. Roberts, Obama said at the time, had too often "used his formidable skills on behalf of the strong in opposition to the weak." Three years later, after Obama was elected president, Roberts famously flubbed Obama's oath of office; the two men had to repeat the ceremony later, inside the White House, just to be safe.
The bottom line of Roberts' decision upholding the mandate met with instant praise from the left and contempt from the right. Radio commentator Rush Limbaugh said the "chief justice was hell-bent to find a way to make this law applicable, so he just decided, you know, as a tax increase, it works." Others piled on.
But what to make of Roberts' carefully constructed opinion for a splintered court remained an open question.
Roberts "got a bargain," Yale law professor Akhil Reed Amar said. In crafting Thursday's opinion the way he did, he said, the chief justice got to cement the court's - and his own - reputation as operating above Washington's bitter partisan fray. And Roberts still managed to deliver that opinion in a way that it embraced conservative principles that could ultimately lead to significant new constraints on the government's authority to regulate commerce and spend money.
Georgetown law professor Randy Barnett, one of the lawyers who led the challenge to the health law, put it this way in a blog post: "Who would have thought that we could win while losing?"
Was that deliberate? Only Roberts knows. But Justice Ruth Bader Ginsburg - who agreed that the law should be upheld as a tax - called it "puzzling" that Roberts would "strive so mightily" to write an opinion limiting Congress' power over interstate commerce if he was going to uphold the mandate anyway.
Scholars and associates of the chief justice say Thursday's decision also reflects a tendency by Roberts to look for ways to uphold the laws Congress adopts, even if he sometimes has to change their meaning to save them. Thursday's decision on health care did essentially that: Because the insurance mandate was a tax, Roberts said, leaves people with the option of choosing to pay the tax instead of buying insurance.
Former Roberts clerk Erin Hawley said Thursday's opinion "was very much restrained on that front."
On that point, though, Roberts and Obama have not always been in agreement. Before he voted against Roberts' confirmation, Obama said he hoped the future chief justice would be "someone who upholds the court's historic role as a check on the majoritarian impulses of the executive branch and the legislative branch."
Chemerinsky said it's far too soon to know what Thursday's ruling might mean for Roberts' legacy, or for the future of the often ideologically divided court he now leads. Roberts is 57 years old. He might be the chief justice for 30 more years.
Contributing: Catalina Camia and Chuck Raasch