by Marcia Coyle
Standing, preemption, burdens of proof, time limits, arbitration—unlikely headline-grabbers, but keys to the courthouse doors. So what to make of the accusations that the Roberts Court is pro-business in the face of often mixed results? In a series of interviews, a number of justices across the ideological spectrum rejected the pro-business label as a superficial analysis of their rulings, and politically motivated.
“The Court decides cases in a way that corporations tend to win, no doubt, and it’s a pro-defendant Court,” said one justice, explaining that for many of them, the issue is more a concern with costly litigation, which is considered a potential burden on the economy. This justice hastened to add, “But I think its decisions are the result of analyzing issues in a fair way.”
Another justice was more forceful in disputing the label. “Go through our opinions. We’ve come out on the side against corporations—I haven’t counted the cases, but as far as I know, as much the other way. That’s nonsense, political nonsense. Some of it is lawyers are just more resourceful. There are more organized causes. Public Citizen raised a lot of this dust. That’s one factor.”
Some disagreements in the business cases run deeper than others, and arbitration is emerging as an area of potentially deeper divisions in the future. As one justice noted, “Some cases it is very difficult to see how my colleagues see things. One of them, AT&T Mobility v. Concepcion.” (In that decision, involving consumers’ attempts to bring a class action over cell phone charges, a 5–4 majority said federal law preempted a California law that held waivers of class actions in arbitration agreements were unenforceable.)
“Here was the Federal Arbitration Act trumping whatever rule the state had about contracts,” said the justice. “The FAA started out as a means to solve disputes less expensively, more swiftly. The initial tug against it was judges who thought it was encroaching on their turf, so there was resistance to arbitration. Using the Arbitration Act to disadvantage consumers is not an inevitable interpretation of the act.”
Another justice initially thought the pro-corporate charge was the result of “some law professor doing a poor research job.” However, “Then I read [Judge Richard] Posner and thought, ‘I see there’s a point here.’ I don’t know to what extent it is, but too much is made of it because there are so many different cases. It’s easy to beat the Court with.”
This justice was referring to a 2010 study by the leading conservative federal appellate judge Richard Posner of Chicago; the political scientist and law professor Lee Epstein of the University of Southern California; and the economist William Landes of the University of Chicago. They analyzed more than 1,400 “economic activity” decisions from 1953 to 2009 to determine whether the Roberts Court was pro-business. Those cases involved antitrust, mergers, bankruptcy, regulation of public utilities, federal/state consumer protection, labor arbitration, and employment discrimination.
Comparing the last five years of the Rehnquist Court, which ended in 2005, to the first five years of the Roberts Court, the study found that the Roberts Court ruled for business 61 percent of the time to 46 percent for the Rehnquist Court, and to 42 percent for all Supreme Courts since 1953—a “statistically significant” difference. The study also found that of the top five most pro-business terms since 1953, two were in the Roberts Court.3
Robin Conrad, head of the U.S. Chamber of Commerce’s litigating arm, challenges claims that the success of business and the chamber in the Roberts Court is the result of the Court’s pro-business bias.
“Two key values that seem to influence the outcomes of business cases are the preference for a uniform set of legal rules, and for laws and regulations that produce predictable results,” she wrote in 2009. “The business community regularly advances these values in its amicus briefs. Another possible explanation for the degree of consensus among the Justices is that most business cases involve questions of statutory interpretation, which are less controversial than culturally-charged constitutional cases.”4
• • •
Numbers only tell part of a story that is more complex than appears on the surface. However, Senate Judiciary Democrats successfully painted a portrait of the Roberts Court as pro-business with some staying power during the Kagan hearings that summer of 2010, and the Court itself helped them with its ruling in Citizens United.
For her part, Kagan sailed through her confirmation hearings, handling more than seven hundred questions with what was fast becoming a trademark sense of humor and few insights into how she would rule. She did, however, distance herself somewhat from the chief justice in her view of a judge’s role. Roberts captured media and public attention with his comparison of the judge to baseball’s umpire: someone who just calls balls and strikes. Kagan agreed with the metaphor’s suggestions that judges should be neutral and that while they have an important role, it is a limited one because it is the people and their elected representatives who make the fundamental decisions for the nation.
“I suppose the way in which I think that the metaphor does have its limits was that the metaphor might suggest to some people that law is a kind of robotic enterprise, that there’s a kind of automatic quality to it, that it’s easy, that we just sort of stand there and, you know, we go ball and strike, and everything is clear-cut, and that there is no judgment in the process,” she said. “And I do think that that’s not right. And it’s especially not right at the Supreme Court level where the hardest cases go and the cases that have been the subject of most dispute go.
“And as to that, I think that judges do, in many of these cases, have to exercise judgment. They’re not easy calls. That doesn’t mean that they’re doing anything other than applying law. But we do know that not every case is decided 9–0, and that’s not because anybody’s acting in bad faith. It’s because those legal judgments are ones in which reasonable people can reasonably disagree sometimes. And so in that sense, law does require a kind of judgment, a kind of wisdom.”
On August 5, 2010, the Senate confirmed Kagan by a vote of 63–37; one Democrat voted no and five Republicans voted yes. On the first Monday in October of that year, she took her seat as the third female justice on the bench—a historic milestone.
Like Sotomayor, Kagan took to the bench like a veteran. In the words of one of their colleagues, “Neither of them is a shrinking violet.” Both women are more vocal during arguments than the justices whom they succeeded, and they have energized the moderate-liberal side of the bench.
Kagan’s questions during arguments on her first day were concise, direct, and delivered in a pleasant tone. She also showed a deftness in picking up on her colleagues’ questions if they had gone unanswered. She seemed to know intuitively that oral arguments are as much a conversation between justices as between justices and the lawyers arguing the case.
However, it was not as easy as it looked. Unlike Sotomayor and the rest of the justices, Kagan had never been a judge and she had to learn the mechanics of being a judge—from the totally mundane to the more important. For example, when should the briefs in a case be read? Two weeks before the argument, or the night before? How should the four clerks be used? Should they write first drafts of opinions? Should they work off an outline provided by her? Should they all be brought into the discussion on all cases, or just the clerk assigned to a particular case?
After a period of experimentation, Kagan found her comfort level. She runs a collective type of shop in which she talks with all four clerks before and after arguments and sometimes at other times, but one clerk takes the lead on each case. The lead clerk on a case writes a bench memo for Kagan in which she asks the clerk how he (or she) would deal with the case if he were a judge. The memo is shared with all of the clerks so all can participate in the case discussions. For opinion writing, Kagan has the lead clerk prepare an outline, which she revises, a draft opinion, and a notebook with all of the cases mentioned in the draft opinion. She then puts the draft opinion on one computer screen, opens a new document on another
, and completely rewrites the draft. As with Chief Justice Roberts, whose clerks also write a first draft, the final opinion is all Kagan. The first opinion of the junior justice is rarely a major one, and Kagan’s first—a bankruptcy decision—was no different. But she soon would show a very distinctive style.
The 2010–11 term was, in a sense, a term overshadowed by anticipation for those who closely followed the Court: anticipation of health care’s arrival. The term had barely begun that October when a federal district judge in Michigan issued the first decision in one of four key challenges: Thomas More Law Center v. Obama. Judge George Steeh, a Clinton appointee, upheld the law. In November, one of the two Virginia challenges was decided—Liberty University v. Geithner—another victory for the Obama administration. That was followed in December and January 2011 by two defeats: Virginia v. Sebelius and State of Florida v. U.S. Department of Health and Human Services, respectively.
From day one, the health care law was a politically charged issue, but it became even more so in the public’s mind because of the political pedigree of the four district court judges who ruled between October and January. Two Democratic-appointed judges had upheld the law, and two Republican-appointed judges had struck it down. Appeals to the next level—federal appellate courts—were inevitable, although Virginia attorney general Ken Cuccinelli tried (unsuccessfully) to leapfrog the pack by going directly to the Supreme Court. The justices would wait for the appeals court rulings.
All bets were still on the Florida challenge, brought by the Republican attorneys general (AGs), as the vehicle for Supreme Court review. Now that the district courts had ruled and appeals were planned, the Obama administration and the state AGs decided it was time to bring in appellate specialists in preparation for the ultimate showdown in the Supreme Court.
Kagan’s principal deputy, Neal Katyal, had become acting solicitor general. Obama had nominated Donald Verrilli Jr., a veteran appellate lawyer who had been monitoring the health care litigation while in the White House Counsel’s Office, to be the new solicitor general, but his confirmation was months away. Attorney General Eric Holder asked Katyal to handle the appeals court cases.
Florida attorney general Bill McCollum, who had launched the AG challenge, also had left office for what would be an unsuccessful run for governor. His Republican successor, Pam Bondi, took control of the litigation. When the state AGs initially filed their health care lawsuit, they had been joined by the National Federation of Independent Business, but that organization was preparing to split off and continue with its own lawyer, Michael Carvin of Jones Day, a veteran of the Reagan Justice Department who specializes in constitutional, civil rights, and civil litigation against the government. Carvin, at the time, also was handling a lawsuit challenging the heart of the Voting Rights Act of 1965, a suit that was expected to go eventually to the Supreme Court.
Two weeks after winning in the district court, Bondi and her legal team flew from Tallahassee to Washington, D.C., to interview potential lawyers who could represent the state AGs in the appeals court and eventually the Supreme Court. She was about to engage in a familiar ritual known as the “beauty contest,” in which appellate and Supreme Court practitioners make their arguments as to why they should be hired for a particular case.
Bondi, with an eye on the Supreme Court, had three of the nation’s top Supreme Court practitioners on her list: Miguel Estrada of Gibson, Dunn & Crutcher, a Republican and Federalist Society favorite; Gregory Garre, head of the appellate and Supreme Court practice at Latham & Watkins and a former George W. Bush administration solicitor general; and his predecessor, Paul Clement of the Bancroft law firm, who had argued the Seattle-Louisville school cases and the District of Columbia gun case for the Bush administration. Estrada’s partner, Theodore Olson, perhaps the dean of Supreme Court practitioners, would have been at the top of anyone’s wish list, but some state AGs deemed Olson unacceptable because he, along with David Boies, who represented Al Gore in Bush v. Gore, was challenging California’s ban on same-sex marriage.
Bondi met separately with each of the lawyers in a conference room at Cadwalader, Wickersham & Taft where her brother practiced law. She and her team settled on Clement, whom they found passionate, humble, brilliant, and—well—affordable. Reportedly for a flat rate of $250,000, they would be getting a lawyer considered by many to be the premier Supreme Court advocate of his generation. At forty-five, he had argued more than fifty cases before the justices, and since leaving government service, he had become the singular choice of conservatives to handle their hot-button causes. Clement was representing House GOP leaders in defense of the federal Defense of Marriage Act; the state of Arizona in defending its tough anti-immigration law; Texas, whose congressional redistricting plan was challenged as discriminating against Latinos; and South Carolina, whose voter identification law faced a discrimination challenge by the Obama administration.
With Katyal and Clement in place for the next round in this constitutional power struggle, both sides faced decisions about their legal arguments that would affect the case when the Supreme Court became involved. The government’s Anti-Injunction Act argument, which would have blocked any challenges to the health care law until 2015, had been a loser in the district courts. Despite that lack of success, some administration officials wanted to continue to make the argument because it would put off a decision on the law’s constitutionality until after the November presidential election. On the other hand, the Internal Revenue Service was spending millions of dollars in preparation for implementing the penalty for not having health insurance. The Department of Health and Human Services was moving forward with creating health insurance exchanges. And the insurance community was implementing some of the law now and planning to implement other parts later, and it worried about its losses if the process were halted. There were strong policy reasons for getting an answer about the health care law as soon as possible. The Anti-Injunction Act itself and how it applied to the health care law presented a very complicated statutory argument, and it had gone nowhere.5
Katyal made the call to abandon the Anti-Injunction Act argument. However, despite continued opposition from some in the administration, he would not abandon the argument that the health care law was a constitutional exercise of Congress’s power to tax and spend for the general welfare.
“I thought the tax argument was important to have in our arsenal,” said Katyal. He recalled that the Yale Law School constitutional law scholar Akhil Amar called him and urged him to use in the government’s appeal a 2009 decision by Chief Justice Roberts in which the chief avoided the constitutional issue in a voting rights challenge by finding another way to read the voting rights law.6
In NAMUDNO v. Holder, Roberts, quoting an earlier Supreme Court decision, said, “ ‘[i]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.’ ” Instead of deciding whether Section 5 of the Voting Rights Act was constitutional, the 8–1 majority interpreted another provision in the law to resolve the utility district’s problem with the Voting Rights Act.
“[Amar] said, ‘You should really cite the NAMUDNO case,’ and we did because, he said, ‘If you can construe this as a tax, if there’s a way to do so, the chief’s opinion in that case is the way to do it.’
“It’s the precedent which basically drives what the chief justice did,” explained Katyal. “It’s rewriting the statute in a way to make it constitutional, what the chief calls a saving construction. I thought Akhil’s suggestion was very smart, to basically say, you could see it as a tax, you might not, but NAMUDNO tells you your duty is to save the statute by construing it as a tax. I didn’t think, honestly, at the time, the NAMUDNO saving construction idea was going to be the thing that won, but you know, it turns out to be.”
And there was the government’s basic commerce clause argument: the individual
mandate regulates the way people pay for health care services, which is a type of economic activity that substantially affects interstate commerce.
For his part, Paul Clement took his side’s commerce clause arguments and, in his trademark style, boiled them down to a clear and simply framed argument: Congress has substantial power to regulate interstate commerce, but it may not compel individuals to enter into commerce so that Congress may better regulate them. Upholding the law would mean there is no meaningful limit on Congress’s power.
Unlike Clement, who would argue health care in one appellate court, Katyal would make the government’s argument in four appellate courts while managing his office’s caseload in the Supreme Court. Because of the high stakes in the health care case, he departed from the office’s tradition of two mock- or “moot”-court arguments per case and did four; and he took one other unusual step.
“I also went to all the agencies and listened—Treasury and the IRS, HHS, the White House, to understand the different policy concerns,” he said. “Normally as SG, everyone comes to you. But I really wanted to go there and learn what concerned them. You don’t often get that by who they send to you. If you go there, there are twenty people talking to you. If they come to you, there’s one person.”
A tenured professor at Georgetown University Law Center, Katyal had taught constitutional law numerous times and was comfortable with the legal arguments in the case, “but all of the facts and what the Affordable Care Act did, the 2,400 pages—all of that, it was huge and required a massive amount of time for preparation.”
• • •
As the health care cases moved through the appellate courts that spring, the Supreme Court prepared to put the 2010–11 term to bed.
In some ways, the last day of the term was a mini-portrait of the entire term. There were more Court-imposed obstacles for injured persons trying to hold companies accountable, more protection of repugnant speech, and a freshman who wielded words like a swordsman.
