This week Chief Justice John Roberts disappointed us once again in an Obamacare case, California v. Texas. The Court dismissed a challenge to Obamacare that arose after Congress zeroed out the tax penalty in the law’s individual mandate. The Chief assigned the writing of the Court’s opinion to Justice Stephen Breyer. He found that the state and individual challengers lacked standing to bring their suit. Justice Clarence Thomas wrote a concurrence and Justice Samuel Alito, joined by Justice Gorsuch, dissented.

Justice Alito is underappreciated as a rock-solid conservative. He and Justice Thomas include the Court’s most reliable conservative justices.

As Justice Thomas made crystal clear in his concurring opinion, the merits of the case- whether or not the mandate to buy insurance is now an unconstitutional command under the Commerce Clause- were not addressed. Landmark’s brief to the Court argued that the Court’s analysis of the individual mandate as a tax in the prior Obamacare case, National Federation of Independent Business v. Sebelius, was improper and should be dropped in light of changed circumstances. (Landmark’s Matthew Forys acknowledged that standing was a hurdle for the challengers in an article for Scotusblog, but explained that the prior justification of the individual mandate as a tax had vanished when the tax was amended to $0.)

A few observations and notes about this decision:

1. Justice Alito is underappreciated as a rock-solid conservative. He and Justice Thomas include the Court’s most reliable conservative justices. We still have expectations that Justice Barrett will soon join their ranks. Justice Gorsuch is a confirmed libertarian and, for better or worse, will remain so in his rulings. The Chief Justice and Justice Kavanaugh appear to have settled on the institutionalist middle – a major disappointment for the Conservative Movement.
2. Note to conservatives in Congress or the Executive Branch: Chief Justice Roberts can never be relied upon as a backstop. Congressional Republicans didn’t have the votes to repeal Obamacare in 2017 and they hoped that the Supreme Court would save them. Their hope was misplaced. After all their complaints about Obamacare and their campaign promises to repeal and replace it, they didn’t have a viable alternative that could pass in its stead.
3. “Standing” refers to an individual party’s right to hear his claim in court. It was a decades-long project of Justice Antonin Scalia to return standing doctrine in the Supreme Court’s cases to its traditional roots. While still a judge on the D.C. Circuit Court of Appeals, Antonin Scalia argued that standing is an essential element of the separation of powers. Loose restrictions on standing lead to “an overjudicialization of the processes of self-governance.” In other words, judges are able to intervene in decisions best left to the political branches when standing is ignored. In one of his many important decisions, Justice Scalia held in Lujan v. Defenders of Wildlife in 1993 that plaintiffs must have a “concrete and particularized” injury that is traceable to defendants’ conduct. Today’s opinion in California v. Texas gives conservatives the cold comfort that standing is alive and well, but perhaps most of all when it suits the liberal justices on the Court.
4. This decision should demonstrate to the American people how utterly reprehensible and phony the progressive leftists on the Senate Judiciary Committee behaved during Amy Coney Barrett’s confirmation hearings. They and their supporters claimed that she was going to overturn the entire ACA and kick people with pre-existing conditions off their healthcare plans. They highlighted testimony from people with serious health issues to paint her as a heartless partisan who didn’t care about sick people. What was the basis of this claim? In 2017, Judge Barrett wrote in a book review, not a court opinion, that “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” This is exactly what Justice Scalia and the other conservative justices expressed in their dissent in the NFIB case. Liberals used her statement to imply that she was a lock to overturn the entire statute.