John Roberts, health care, and the 'Breaking Bad' effect

By Michael Yudell

There’s been a lot of ink spilled the past two weeks as commentators left and right have offered their best explanations for Supreme Court Chief Justice John Roberts’ majority opinion and decisive vote in favor of upholding the Affordable Care Act, albeit with some modifications in the law's Medicaid provision (read the full opinion here). That the swing vote was provided by Roberts surprised just about everyone, given the chief justice's seeming hostility to the law during oral arguments in March and his longstanding conservative bona fides.


From the left, explanations included speculation that, as Ronald Dworkin put it in the New York Review of Books, Roberts came to believe in spite of his own history “that unelected judges should be extremely reluctant to overrule an elected legislature’s decision.” Or, perhaps, as Jeffrey Rosen suggested in The New Republic, Roberts voted as he did “to protect the long-term institutional interests of the Court rather than embrace the conservative ideological agenda in its most radical dimensions.”

From the right, commentator Marc Thiessen wrote that Roberts' lack of “intestinal fortitude” left him vulnerable to “pressure from the New York Times, the Georgetown cocktail circuit and the legal academy.” John Yoo, an architect of the Bush administration's policy on torture, found enough of his own intestinal fortitude to write, without irony, that Roberts “sacrificed the Constitution's last remaining limits on federal power” for “a little peace and quiet from attacks [on the Supreme Court] during a presidential election year.” It has even been suggested the Roberts is really a closet liberal, an idea that begs credulity given the chief justice's long history of conservative advocacy.

Attacks on Roberts from the extremes of the right are nutty but worth mentioning. Michael Savage and Bryan Fischer, for example, believe that Roberts, who has suffered at least two seizures during his lifetime, is epileptic and taking anti-seizure medication that “can introduce mental slowing, forgetfulness and other cognitive problems.” According to Savage, “if you look at Roberts’ writings you can see the cognitive dissociation in what he is saying.”

So . . . I think that there are three possible explanations for Roberts' vote on the legality of President Obama's health-care overhaul:

  1. Until shown otherwise, we should probably take Roberts at his word, as unsatisfying as that may be. He said he believed that the law was constitutional under the federal government’s taxation power.
  2. Though Savage and Fischer are pretty unhinged in their speculation, they do bring up an interesting point. Perhaps Roberts’ seizures and possible epilepsy did, in fact, play a role in his vote. University of Pennsylvania professors Ezekiel Emmanuel and Theodore Ruger speculate as much in the New York Times: “Remember his unexplained seizure soon after he became chief justice? If he did not have employer-provided insurance and had to get his own coverage on the individual market, he would be denied health insurance coverage at almost any price. Maybe the appreciation for his precarious insurance status made Chief Justice Roberts more sensitive to the need for the Affordable Care Act and its requirement that insurance be available to all of those with pre-existing conditions.”
  3. I’d like to think the chief justice is a fan of AMC's Breaking Bad, a drama that offers one of the most twistedly compelling arguments in favor of not just something like the Affordable Care Act but of the inhumanity and potential repercussions of not providing healthcare for all. Watching Walter White (the show’s main character) descend from mild-mannered high school chemistry teacher to brutal drug kingpin might be enough to send even Antonin Scalia to a free medical clinic in France. Diagnosed with advanced lung cancer and unable to afford the best care for his disease, White uses his superior skills as a chemist to synthesize and sell crystal methamphetamine to support his treatment and provide for his family. So begins a depraved journey for White—each of his decisions have grave consequences for his family and friends, as well as for complete strangers, and we bear witness to what happens when one desperate chemistry teacher lacks the healthcare he needs to peacefully live out his days.

Whatever the reason, as someone with one heck of a pre-existing condition (I am a survivor of a rare and sometimes deadly form of lymphoma), I am really glad that Roberts and his four compatriots on the court did what they did. Despite the fulmination on the right, we are all the better for it.

Read more about The Public's Health.