The inside story of how John Roberts negotiated to save Obamacare

CNN  — 

Adapted from “The Chief: The Life and Turbulent Times of Chief Justice John Roberts” by Joan Biskupic. Copyright © 2019. Available from Basic Books.

Chief Justice John Roberts arrived at the Valletta campus of the University of Malta on July 3, 2012, to teach a class on Supreme Court history. As he emerged from the back seat of a black sedan, he held his brown leather briefcase in front of him, almost as a shield. He wore a blue blazer, striped button-down shirt, and tan khakis. His clothes looked crisp, though his face was haggard. He was as exhausted and distressed as he had been in years.

Roberts had left behind a storm in Washington over his opinion upholding President Barack Obama’s health-care overhaul – the Affordable Care Act – a stunning validation of Obama’s signature domestic achievement that transformed public perceptions of the chief justice.

Republicans in Congress had been fighting the law dubbed Obamacare at every turn for two years, and all the GOP presidential candidates in 2012 had vowed to repeal it. And now Roberts, a nominee of President George W. Bush, had saved it.

Going forward, the chief justice would be viewed with skepticism by conservatives, despite also having taken the lead on limiting racial remedies and voting rights, helping roll back campaign finance regulations and voting for stronger Second Amendment gun rights.

Roberts’ moves behind the scenes were as extraordinary as his ruling. He changed course multiple times. He was part of the majority of justices who initially voted in a private conference to strike down the individual insurance mandate – the heart of the law – but he also voted to uphold an expansion of Medicaid for people near the poverty line.

Two months later, Roberts had shifted on both.

The final tallies, 5-4 to uphold the individual mandate and 7-2 to curtail the Medicaid plan, came after weeks of negotiations and trade-offs among the justices.

The ACA, signed by Obama in 2010, followed decades of failed attempts in Washington to control spiraling medical costs and provide Americans with higher-quality health care. It created a marketplace where the uninsured could buy coverage and protected people from being unable to get health insurance because of pre-existing conditions such as diabetes, cancer and other chronic illnesses. To support the system and draw in the healthy as well as the sick, the law required that most uninsured people obtain coverage (the “individual mandate”) or pay a penalty, to be collected as part of an individual’s annual taxes – a provision critical to the final ruling.

The law also expanded Medicaid benefits to a wider range of needy individuals. The money for about 90% of that expansion would come from the federal government. But it would come with a strict condition: If states did not broaden their programs as dictated they would lose all Medicaid funds.

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The first meeting – 5-4 against the mandate

After an unusual three full days of oral arguments in late March 2012 (a typical case gets one hour on one day), the nine justices gathered in a private conference room off the chief’s chambers to cast initial votes. They were alone, with no law clerks or administrative staff.

The discussion focused on the individual insurance mandate and Congress’ power to regulate commerce. Roberts went first, as was the custom, laying out his views. He emphasized that he believed the Constitution’s commerce clause never was intended to cover inactivity, such as the refusal to buy insurance.

After the chief, conservative Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas offered their views. Like Roberts, they thought Congress’ commerce authority did not cover an individual’s decision to forgo – rather than obtain – health insurance. There were thus four immediate votes cast to invalidate the mandate. No one at the table was surprised, based on the questions during oral arguments and word from law clerks inside the building circulating intelligence among the justices’ chambers.

The votes of the liberals were known, too. Justice Ruth Bader Ginsburg, fifth in seniority, was the first to cast a vo