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In health-care decision, Roberts rules of order reign

Besides his key vote in upholding most of Obamacare, Chief Justice John Roberts also pointed to a need for civility, humility, and limits in the use of power.

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US Supreme Court Associate Justice Sonia Sotomayor is congratulated by Chief Justice of the United States John Roberts after her investiture ceremony in Washington September 8, 2009.

Jason Reed/Reuters

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Americans were startled when Chief Justice John Roberts provided the key vote in the Supreme Court’s 5-to-4 decision upholding most of President Obama’s Affordable Care Act. Equally startling but almost unnoticed was how much his written decision also seems to call for humility and civility in the use of power.

Call it Roberts Rules of a New Order.

His choice of words in the majority ruling serves as a counterpoint to the hard-knuckle politics and institutional bullying that marks Washington and that has created a low regard for much of government, even the Supreme Court itself.

Today, almost every tool of coercion in governance – contempt citations, executive privilege, filibuster, no-amendments voting, you name it – is deployed in a perpetual, take-no-prisoners war of politics. Even the rhetoric of some high court’s justices has become sharper, more personal.

In his writing about the act’s individual mandate and the other big issue before the court – the expansion of Medicaid – the chief justice reminds us that power must be limited, accountable, and close to the people. It is best wielded by incentives, persuasion, and encouragement, not threats – or a “gun to the head,” as he termed it.

He seeks a “proper respect” between the three branches of government, as well as between the federal and state governments. That point was reflected in his providing legal cover for the health-care law in how it can “encourage” citizens to buy insurance with a tax.

The call for respect was also evident in the ruling’s action that prevents federal coercion of the states in accepting the new law’s expansion of Medicaid.

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