Former U.S. Attorney General Alberto Gonzales spoke late Thursday to NashvillePost.com on the U.S. Supreme Court decision validating the controversial health care legislation passed by Congress early in the term of President Obama.
The decision is being called the most important Supreme Court decision since the one that cleared the path for his former boss, President George W. Bush, to move into the White House. Now a senior counsel at Waller Lansden Dortch & Davis as well as a law professor at Belmont University College of Law, Gonzales weighed in on the process and the surprise elements of the Supreme Court’s ruling.
“I did not anticipate that the Court would find the argument about the Commerce Clause unconstitutional yet still uphold the act,” he said, adding that he thinks the Commerce Clause is being used expansively in a way the framers of the Constitution did not intend.
He added that he was surprised by the vote of Justice Anthony Kennedy, whom he had expected would join what is called the “liberal wing” of the Supreme Court to make it a 6-3 decision, not 5-4.
Having interviewed and vetted Chief Justice John Roberts twice for President Bush — first for the U.S. Court of Appeals for the District of Columbia and then for his current position — Gonzales said he had a good idea that Roberts would write the majority opinion and figured he would bring Kennedy with him.
“Overall, I am not surprised how it was upheld but rather at how we got there,” he said.
While many media outlets have focused on the determination by Roberts that the health care legislation was a tax — contrary to the opinion of Obama, whose team had first and foremost argued the legislation was legal under the Commerce Clause — Gonzales said his experience has shown him it is not uncommon for a judge to decide a case on grounds that were not presented forcefully by counsel in arguments.
Prior to serving as U.S. attorney general, Gonzales served as White House counsel, secretary of the State of Texas and as associate justice on the Texas Supreme Court. Asked about the process Roberts used in making his decision, Gonzales said he is “very disciplined” and will decide cases on narrow issues.
“I expected he would do so in this case. He begins with a presumption that a law passed by Congress is constitutional,” Gonzales said. “I anticipated and hoped that he would decide a case that is consistent with those principles.”
As for the decision by the court as a whole, Gonzales was diplomatic.
“I want to give them the benefit of the doubt. They are all smart and doing the best they can,” he said. “I will withhold judgment as the opinion has just come out. We now know that the health care act is one avenue of providing health care, [but] there may be a better way. It may be constitutional, but not the best policy.”
Finally, we asked Gonzales about the criticism Roberts was getting from the conservative wing of American society, specifically comments made by former Bush press secretary Ari Fleischer.
Fleischer took to Twitter after the decision was announced, stating, “I miss Justice Harriet Miers,” an apparent dig at Roberts that refers to another of Bush’s former White House counsels who was briefly considered for a spot on the high court. Gonzales took umbrage at the remark in defending Roberts.
“I couldn’t disagree more. This is not about Harriet Miers, whom I also have a tremendous amount of respect for. I stand by Justices Alito [also a Bush appointee vetted by Gonzales] and Roberts, who will be the brightest and most lasting legacy of President Bush.”