WASHINGTON-Outside the U.S. Supreme Court on the healthcare decision day, it was all sweat from 100-degree temperatures and noise from drums, shouting, megaphones, and music. Inside the courtroom Thursday, for five minutes before the nine justices entered, there was a tense silence as the audience waited.
No cell phones are allowed in the courtroom-or much of anything beyond a pen and the clothes on your back-so no one could do anything but sit still and feel the suspense grow. The high court handles arcane legal matters most of the time, but the healthcare opinion was the rare document that vividly affects every American-whether he or she has health insurance or not.
The justices swept in and sat, and after Justice Anthony Kennedy read an opinion on fraudulent claims about military honors, Chief Justice John Roberts calmly announced that he had an opinion to read, the final one of the term.
In an outcome very few court experts predicted after hearing the oral arguments, the court left the Affordable Care Act of 2010 largely untouched. The majority also encompassed an alliance that no one predicted of Roberts and the liberal bloc of the court: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. (Download a PDF of the opinion.)
But Roberts, penning the majority opinion, limited the ruling to say that Congress had the power to tax, and the individual mandate's penalty for not having health insurance counted as a tax increase. Even though Congress described the penalty as a "shared responsibility payment," Roberts said, "It functions like a tax."
The court did declare the individual mandate unconstitutional under the Commerce Clause, because Roberts said Congress could not create activity to regulate it. But the mandate had faced two questions for the court to consider-whether it was constitutional under the Commerce Clause and under Congress' power to tax. It only had to survive one of the two for the court to uphold it.
Lawyers who filed lawsuits against the contraceptive mandate, which was not any part of the Supreme Court's consideration in this case, perked up at the court's comments about the Commerce Clause. Roberts said the individual mandate "compels individuals to purchase a product they may not want," which amounts to a "substantial expansion of the government's power." At another point he said the federal government could not compel people "to enter commerce precisely when they have chosen not to."
For opponents of the contraceptive mandate, these hints were the silver lining of the ruling as their cases move forward in lower courts across the country.
"[The comments] signal that the court may be willing to strike down the [Health and Human Services] mandate," said Hannah Smith, a lawyer with the Becket Fund for Religious Liberty who is working on the contraceptive mandate challenges.
Roberts at the beginning of his opinion outlined the role of the court: He noted that the court was not ruling on the "wisdom or fairness" of the mandate and its accompanying tax for not buying insurance. "It is not our job to save the people from the consequences of their political choices," he said.
Casey Mattox, a lawyer for the Alliance Defense Fund, attended the healthcare arguments and stood wearing a suit and tie on the hot steps of the court after the decision. The ADF is working on cases challenging the contraceptive mandate. Mattox called the ruling "unexpected, narrow, odd … a piecemeal rewriting of the law." He found Roberts' logic about the law being a tax and thus under the prerogative of Congress untenable.
"Congress when they were passing the bill said, 'This is not a tax,'" Mattox pointed out. "Political accountability works only when you can have accountability."
The court did limit the law's expansion of Medicaid, saying that the federal government could offer additional funds to states to expand their coverage but could not threaten the rest of their Medicaid funding if they didn't accept the extra funds.
It could have gone so differently. The dissenting bloc of Justices Kennedy (who most observers focused on during the arguments as the key vote), Antonin Scalia, Clarence Thomas, and Samuel Alito wrote that they would have nullified the entire law as unconstitutional, doing so on the grounds that the individual mandate was unconstitutional and that it was the heart of the law and could not be "severed" without taking the rest of the law down with it.
Kennedy, typically chipper, read the close of his dissent in court with a weariness, saying the majority was guilty of "vast judicial overreaching." Now the healthcare law, he pointed out, is "a distorted version of the act-decreed by the court and no one else."
President Barack Obama called Solicitor General Donald Verrilli Jr., who argued the cases before the court (and came under criticism for his performance), soon after the ruling to congratulate him. But Tea Party protestors outside the court shouted, "Just wait 'til the elections in November 2012!"
Meanwhile, Mitt Romney's campaign announced that the GOP challenger had raised $1 million in the two hours after the ruling was announced. (For more on the ruling's election year implications, see "It's 2010 again," by Edward Lee Pitts.)