By Tribe, Laurence
Newsweek , Vol. 160, No. 03
Byline: Laurence Tribe
How John Roberts and Barack Obama ended up as allies on health care.
One day in the spring of 1989, Barack Obama and I found ourselves discussing a case whose relevance to the Supreme Court's 2012 health-care decision neither of us could conceivably have anticipated at the time. I had recently hired Barack--I'll call him that here because that's what I called him then--as my principal research assistant, and he was helping me with a complicated law-review article about what lawyers can learn from modern physics. I can still recall him sitting on the floor of my law-school office on that particular day, a lanky kid in jeans and leather jacket, the sun streaming in through my windows, as we went back and forth discussing a Supreme Court decision that had been handed down several months earlier.
The case, DeShaney v. Winnebago County, centered around a child named Joshua who had been repeatedly beaten by his father. Despite the many warnings the social-service agencies of Wisconsin had received, nobody had come to Joshua's rescue, and he had ended up in a vegetative state. Joshua's guardian sued the social workers and other officials whose inaction had permitted these terrible beatings to occur, claiming that their irresponsible failure to act had deprived Joshua of his liberty in violation of the U.S. Constitution. But the Supreme Court found no violation because, in the reasoning of then-justice William Rehnquist, the state's agents had been guilty of nothing more than "inaction." Barack and I both agreed that the distinction between "action" and "inaction" was not significant enough to justify so brutal a result.
In the wake of the Supreme Court's decision to uphold the Affordable Care Act last month, our long-ago discussion about DeShaney has been on my mind. One reason is that the philosophical distinction between action and inaction--between purchasing health insurance and failing to purchase it--was at the core of the legal debate surrounding Obamacare. The other reason is perhaps more surprising. While we were both persuaded that Rehnquist's decision in DeShaney had been wrong, I distinctly remember Barack saying something like, "But Professor, we've got to be careful not to suggest the government's responsible for every injury it might've been able to prevent." "What do you have in mind, Barack?" I think I asked. "Well, we don't want to see the world in a way that absolves people of personal responsibility for the harm they do. And we don't want rules that invite government agents to barge too casually into family life."
This was just one of the many moments at which I realized that, while Barack was idealistic, he was pragmatic as well. Though liberal and committed to a caring society, he was also deeply concerned about personal responsibility--and was able to see the limits of his own positions.
Double-back for a moment to the time a dozen years earlier that the young John Roberts--who last month singlehandedly decided the fate of Obamacare--was my constitutional law student. I never got to know him nearly as well as I did Barack. He had taken just one basic course with me, while Barack had taken a basic course and an advanced seminar. Roberts was never my research assistant, and he was but one of more than 200 students with whom I conducted a Socratic dialogue in class.
Still, I found myself thinking about one aspect of that 1977 course as I listened to the Supreme Court's oral arguments on the Affordable Care Act in March. …