President Obama is tied to the post of healthcare—he will sail or sink with it. He might as well give it his best shot

A rather peculiar feature of American jurisprudence is that years after or even a decade after a particular judge is appointed by a political party, he or she is supposed to follow the party line. Hence judges appointed by Republican presidents are supposed to follow Republican policies and judges appointed by Democratic presidents are supposed to follow democratic policies. This is regarded as completely normal and passes without much comment and a judge not following the party line is regarded as misjudgement for the president concerned. Hence Earl Warren, who was a appointed by the Republican president Dwight Eisenhower and had been the Republican governor of California, turned out to be one of the most liberal judges (he was responsible for desegregation in the case of Brown Vs Board of Education and was regarded as a disastrous appointment.  

Similarly justice Harry Blackmun when appointed was dubbed the Minnesota Twin along with Chief Justice Warren Burger and later went on to write Roe Vs Wade, was regarded as a disaster by the Republicans. It is in this light that Chief Justice Roberts' opinion in the Healthcare case has to be evaluated. Chief Justice John Roberts replaced an extremely conservative judge. Chief Justice Rehnquist was appointed by George W Bush to his position. In split decisions, which went five to four, he has not once decided along with the liberal block. He is a staunch conservative. However, for the first time in what looks like of statesmanship, he sided with the liberal block to uphold the single mandate in the case of National Federation of Independent Businesses Vs Kathleen Seblius.

The single mandate says that those who do not buy insurance will have to pay a minimum penalty. Chief Justice Roberts' judgment is a carefully crafted judgment and is based on basic constitutional tenet i.e. all attempts should be made to uphold the law if legally possible and the court should strike down the law only as a last resort. The judgment of the chief justice also cites the original intent of the framers of the constitution-a common conservative argument to aid his argument in not utilizing the commerce clause to uphold Obama's case. For this, among other things, he interprets the commerce clauses in a typically legalistic fashion which would do a strict constructionist proud.

Justice Roberts is also extremely careful in repeatedly stating that it is not for the court to sit in judgment on the wisdom of the policy that is between the people and their representative and is actually none of the court's business. Justice Roberts saved the Obama case by calling the penalty a tax and bringing it within the power to tax that Congress has. He said that that was a possible interpretation and hence had to be utilized. He is also solicitous of a basic conservative principle of States Rights. However as Justice Roberts upheld a fundamental law initiated by a Democratic president and was opposed tooth and nail by the Republicans., the Democrats were surprised and elated and the Republicans were shocked and wondered how all this happened. However, this happened.

Chief Justice Roberts has done much to restore the credibility of the court after the partisan judgment of Bush Vs Gore (in which the Supreme Court handed the White House to George Bush) which coloured the reputation of the Supreme Court for many years. He has also made the court his own and now it can be truly called the "Chief Justice's Court".

But more importantly what is the impact all this has on the election. As soon as the judgment was passed, Governor Romney announced that the Supreme Court did not comment on the wisdom of the healthcare policies but only on their constitutionality and if he becomes president his first task will be to repeal the healthcare law. This is easier said than done. Even assuming that the Republicans take hold of the Senate they will not have a filibuster proof majority and the Democrats will not allow Obama Care to go without a fight. In the hour after the result it was announced that the Romney campaign had collected a million dollars and it is safe to assume that the conservative base is going to be all fired up.

It is up to President Obama now to take on Romney head on and staunchly defend the healthcare law which he has been avoiding all this while it caused the Republican landslide in 2010. Universal healthcare is understandably something which many presidents have previously failed to get passed and President Obama will now have to be its "chief salesman". President Obama is tied to the post of healthcare-he will sail or sink with it. He might as well give it his best shot.

But the dubbing of penalty tax by the Supreme Court will complicate his task. He will be dubbed a tax and spend liberal with the recent Supreme Court judgment President Obama's legacy is now secure. The same cannot be said of his re-election.

(Harsh Desai has done his BA in Political Science from St Xavier's College & Elphinstone College, Bombay and has done his Master's in Law from Columbia University in the city of New York. He is a practicing advocate at the Bombay High Court.)