The Roberts Court: The Struggle for the Constitution (50 page)

Late in the term, the Court’s conservative majority quickly disposed of Montana’s effort to preserve its century-old ban on corporate independent expenditures despite the
Citizens United
ruling striking down a similar federal ban in 2010.

In an unsigned decision, the same majority in
Citizens United
said, “The question presented in this case is whether the holding of
Citizens United
applies to the Montana state law. There can be no serious doubt that it does. Montana’s arguments in support of the judgment below either were already rejected in
Citizens United
, or fail to meaningfully distinguish that case.”
¹⁰

Justice Breyer, writing for Ginsburg and Sotomayor, reiterated disagreement with
Citizens United
(as did Kagan for the first time) and added that “Montana’s experience, like considerable experience elsewhere since the Court’s decision in
Citizens United
, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”

Despite important 5–4 ideological splits, there also was noticeably more “fluidity” among the justices, the breaking up of the usual ideological alignments. That was dramatically evident in the final two major decisions of the term: the immigration challenge,
Arizona v. United States
, and the health care ruling,
NFIB v. Sebelius
.

In the
Arizona
case, a 5–3 majority (Kagan recused) found that most of the state’s controversial immigration provisions were preempted by
federal immigration law. Roberts joined Kennedy, Ginsburg, Breyer, and Sotomayor in what was a major victory for the Obama administration and Verrilli, who argued the case for the administration.

Between the March arguments in the health care case and close to the end of the term, considerable chatter filled political and legal blogs over what was happening inside the Court. Reports that Chief Justice Roberts was “wobbly” on finding the mandate unconstitutional came from some sources. Accusations flew from right to left and back that certain commentators, even U.S. senators, were trying to intimidate the justices, particularly Roberts, with dire public warnings in essays and speeches of harm to the Court’s institutional credibility if it became the first Supreme Court in more than seventy years to strike down a president’s signature program. The blogging on the right, primarily by law professors such as Randy Barnett, exhibited a sort of controlled frenzy about the pending decision.

•  •  •

On June 28, 2012, the term’s last day, the courtroom again was filled to capacity. The spouses of some of the justices came, as did retired Justice John Paul Stevens. At 10 am, the justices emerged from behind the maroon velvet drapes that separate the courtroom from their chambers and stood at their chairs as the marshal of the Court gave the traditional “Oyez, Oyez” call. Absent were the usual smiles and nods by the justices to the audience that marked the end of the term. Sotomayor and Kagan, bookends on the bench, appeared exhausted. Scalia, Thomas, and Alito looked grim and leaned back in their chairs. Only Breyer looked, well, content.

After disposing of two cases, only health care—the most important decision in the history of the Roberts Court—remained. Not surprisingly, Roberts announced that he had the opinion. And then Chief Justice Roberts, clear-eyed and in matter-of-fact voice, delivered the most remarkable opinion of his career.

He began by restating the government’s argument that the individual
mandate was a proper exercise of Congress’s power to regulate commerce and to tax. Roberts said that he and Justices Scalia, Kennedy, Thomas, and Alito had concluded that the individual mandate was an unconstitutional exercise of Congress’s commerce power. That power only allows Congress to regulate activity, not inactivity. “The individual mandate, however, does not regulate existing commercial activity,” he wrote. “It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things.”

The mandate also could not be upheld under the necessary and proper clause, added the chief justice, because even if it were necessary to achieve the act’s insurance reforms, the expansion of federal power is not a “proper” means for making the reforms effective.

Roberts then turned to the government’s second argument: the tax power. He noted the “well established” judicial principle “that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.” Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan, held that the mandate was a constitutional exercise of Congress’s power to tax. Although the act calls the payment for not having insurance a “penalty” and not a “tax,” Roberts said the label does not determine whether it falls within the tax power. What is determinative is how it functions, he explained, and this penalty functions like a tax in many respects. For example, it is paid into the Treasury by taxpayers when they file their tax returns, he said. The requirement to pay is in the Internal Revenue Code and is enforced by the Internal Revenue Service. The amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status, and it produces some revenue for the government. He added, “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

On the Medicaid issue, all of the justices except Ginsburg and Sotomayor agreed that the expanded program exceeded Congress’s authority under the spending clause. Congress unconstitutionally coerced the states to adopt the changes by threatening to withhold all of the states’ Medicaid grants. Roberts called the threat “a gun to the head.” The surprise here was the agreement by Breyer and Kagan, who had been particularly skeptical of the challengers’ arguments.

However, Roberts, joined only by Ginsburg, Breyer, Sotomayor, and Kagan, held that the constitutional violation could be remedied by invalidating the unconstitutional condition—the threat to withhold all existing Medicaid funds for failure to comply—and not the entire program. States now have a real choice, he said, adding, “We are confident that Congress would have wanted to preserve the rest of the act.”

An emotional Kennedy next summarized an unusual joint dissent written, he said, by himself, Scalia, Thomas, and Alito. “In our view, the Act before us is invalid in its entirety.” They agreed that the mandate could not be justified as an exercise of the commerce power, but they also did not see it as a proper exercise of the tax power. Congress, he said, went to great lengths to structure the mandate as a penalty, not a tax, and he accused the majority of “judicial tax-writing.”

The Medicaid expansion, he said, could not be saved by the majority’s remedy because that is “rewriting the statute” and there is no judicial authority to do so. Finally, he concluded that the mandate and the Medicaid expansion were central to the law’s design and operation, and the act’s other provisions would not have been enacted without them. “It must follow that the entire statute is linked together, and without the mandate and Medicaid expansion, the entire Act is inoperative,” he said.

Amazingly, Kennedy, the center of power on the Roberts Court for six years, had lost the most important case on power in more than sixty years.

Ginsburg, in her trademark straightforward and calm manner, summarized perhaps her most thorough, clear, and persuasive opinion in her long career. Joined by Breyer, Sotomayor, and Kagan, she “emphatically”
disagreed with the commerce clause ruling. She compared Congress’s enactment of the Affordable Care Act in 2010 to its enactment of Social Security in 1930. The commerce clause ruling, she said, “harks back to the era, ended 75 years ago, when the Court routinely thwarted legislative efforts to regulate the economy in the interest of those who labor to sustain it. It is a stunning step back that should not have staying power.” Her reference was to the long-repudiated
Lochner
era. And she, joined only by Sotomayor, explained how the Court went wrong in its view of the Medicaid expansion.

Roberts’s decision was remarkable in that it gave the law’s opponents a new limit on Congress’s commerce clause power—the activity-inactivity distinction—as well as a new opportunity for states to challenge federal conditions on funding or regulations that they deem coercive. And yet, he upheld the mandate for the law’s supporters and saved the Medicaid expansion. The decision also avoided an ideological split that would have made the Court vulnerable to charges of partisan politics since he and the liberal wing agreed on the tax power, and Kagan and Breyer joined the conservative wing on the Medicaid issue.

The boldest, most aggressive decision in the case, however, came from the four joint dissenters who would have struck down the entire, 2,700-page law, including many provisions that had nothing to do with the insurance reforms, such as amendments to the Black Lung Benefits Act that evened the playing field for dying coal miners or their widows seeking benefits from coal companies.

Just days after the decision, a CBS News correspondent reported that sources with specific knowledge of the deliberations had told her that Roberts initially voted to strike down the mandate but later switched his position.
¹¹
The leaks told of how hard the conservatives tried to win Roberts back and, upon failing, they decided to have nothing more to do with him. The rift in the Court, she reported, was “deep and personal.”

Suddenly, Roberts was being attacked by some opponents of the
mandate as not a true conservative, unprincipled and political, motivated less by law and more by the desire to remove the Court from the eye of a political storm.

For example, in an interview with
National Review
, Randy Barnett, the leading opponent of the health care law who previously had said the Court would not be influenced “one bit by politics or the election,” said after the ruling: “The fact that this decision was apparently political, rather than legal, completely undermines its legitimacy as a precedent. Its result can be reversed by the people in November, and its weak-tax-power holding reversed by any future Court without pause.”
¹²

The government’s tax power argument had been rejected in the lower federal courts, but it was not considered a weak argument by some leading constitutional scholars and tax law experts, who wrote articles and amicus briefs advocating it from the beginning of the litigation through the Supreme Court. The Justice Department never waivered in raising the tax argument from the outset. Roberts himself mentioned that the penalty looked like a tax on the opening day of the health care arguments.

While the mandate’s opponents were tearing down John Roberts, its supporters were comparing him to John Marshall, the Great Chief Justice, and how Marshall deftly avoided a constitutional showdown with President Thomas Jefferson. And, they suggested, Roberts was the modern Felix Frankfurter, a leading proponent of judicial restraint.

Justices change their minds, or make up their minds, even after they vote in the privacy of their conferences, after they exchange draft opinions with back-and-forth comments, after they find that an opinion “just doesn’t write.” As Ginsburg said in a late summer interview, “It ain’t over ’til it’s over.”

The leak, perhaps the most significant breach of the Court’s confidentiality in modern times, also said the health care dissenters’ unhappiness with Roberts was “deep and personal,” with potentially long-lasting effect.

In public comments later that summer and fall, Scalia and Kennedy denied the existence of a rift with Roberts. Other justices, in interviews with this author, acknowledged the high tensions and emotions at the term’s end, but were confident that emotions would ease over the summer, just as they had after the Seattle-Louisville decision in 2007 and
Bush v. Gore
in 2000.

The end of the term was “certainly hard,” said one justice. Another justice explained, “The term always starts friendly and relaxed, and gets tense at the end when the most difficult cases pile up. It’s still collegial, but there is an overlay of frustration.”

Despite sharp, often passionate disagreements, the Roberts and Rehnquist Courts have been among the most collegial Supreme Courts in history.

“When you arrive, it’s apparent they’re all friends,” said one justice. “They disagree passionately sometimes, but don’t take it personally. And when you’re put in that environment, you tend to behave the same way. I can’t imagine the Court when William O. Douglas and Felix Frankfurter were on it and they wouldn’t speak to each other.”

Another justice asked, “Who on the Court is the sort of person who is going to carry a grudge? Nino Scalia isn’t going to carry a grudge. Clarence Thomas is going to pat you on the back and give you a hearty laugh all the time. That’s a big part of it.”

In general, one justice explained, “There’s a lot of mutual esteem and mutual affection. There have been times on the Court when that hasn’t been true, but I don’t find it surprising that it is true now when I think about it. We have to live with each other for a long time. It’s a lot more enjoyable if you like the people you work with, and this is a likable set of people.”

The job of a justice is unusual in the sense that there is almost nothing like it, said another justice. “We all do the same thing. We read the same briefs; we go to the same arguments; we sit in the same conferences; we write the same decisions. It’s easy to bond in a special way.
There are only eight people in the world I can talk to about politics, about a lot of things. So you do tend to share a lot and you do know everybody suffers under the same disability. To a large extent on a large number of subjects, we are the only choice of friends we have, so you find a way to get along.”