by Marcia Coyle
Although the Court’s marble-laden home has a remarkable insulating effect, figuratively and literally, the justices were acutely aware of the politically charged atmosphere surrounding the term, and the health care case in particular.
The weekend before the health care decision was issued, Ruth Bader Ginsburg delivered remarks at the annual convention of a liberal legal advocacy organization, the American Constitution Society. She noted that “No contest since the Court invited new briefs and argument in Citizens United has attracted more attention in the press, the academy and the ticket line outside the Supreme Court, a line that formed three days before the oral arguments commenced.”
And another justice confided the day before the health care ruling that he had felt the political tensions surrounding the term more than in prior terms. “I felt it more this term,” said the justice, adding, “I don’t know why. Perhaps it was the many difficult issues [on the docket] and the political atmosphere coming together.”
• • •
On the first day of the health care arguments, Monday, March 26, 2012, the action outside the Court was more energized than the arguments inside. Old-fashioned protests, complete with signs and chants, unfolded in front of the Supreme Court Building, and a long line of hopeful observers snaked around the corner. The Anti-Injunction Act of 1867 was the issue of the day, and it quickly became clear that the justices did not see that act as a bar to their reviewing the constitutionality of the health care law.
When Donald Verrilli stood up to make the government’s argument that the act did not apply, he faced little pushback. Although not evident at the time, the Court’s relatively low-key questioning left Verrilli with extra time to fill, which he seized effectively by laying the groundwork for the government’s argument on Congress’s tax power. Justice Sotomayor provided the opening by asking if there were any collateral consequences of not having health insurance. Verrilli spent considerable time explaining how the penalty—tax—for not having insurance operated. That explanation, it would be seen later, had a keen impact on the chief justice.
Tuesday, March 27, the second day, was the main event—the constitutionality of the individual mandate. Outside, a near-circuslike atmosphere prevailed: demonstrators, music, even a belly dancer occupied the sidewalk below the building’s plaza. Inside, the lawyers would play to a packed house. More than a dozen members of Congress from both sides of the aisle took seats in the courtroom, as did a number of Obama administration cabinet members, including the attorney general and the secretary of Health and Human Services. Bill McCollum, the former Florida attorney general who had spearheaded the health care lawsuit, had a special seat in the justices’ guest section. The chief justice’s wife, who works as a legal headhunter, had recruited him for the law firm where he then worked, and she gave him her seat since she was out of town that day. McCollum found himself sitting between two of the chief justice’s physicians.
Verrilli was first at the podium and immediately encountered a freakish problem. Slightly hoarse with a frog in his throat, he struggled to begin his argument, took a sip of water, failed to clear his throat, and tried again. Roberts, looking concerned yet unsure what to do, leaned forward as if to say something, but Verrilli found his voice and started again. After that, his argument seemed disjointed and weak. Later, he was harshly criticized as having blown the most important argument of the century.
Various factors led to that criticism. Verrilli, according to a recent study of the arguments, was interrupted 180 times—an average of every twenty-two seconds—during his fifty-six minutes at the podium by questions primarily from the Court’s conservative wing. He was able to speak roughly ten or fewer seconds more than 40 percent of the time before being interrupted. By contrast, his main opponent, Clement, was interrupted thirty-three times in thirty minutes and spoke for one minute or longer before being interrupted. He and Carvin faced far fewer questions from the conservative justices, even though they were the challengers.9
Verrilli, Clement, and Carvin also have dramatically different styles. The solicitor general is soft-spoken and deliberate. Clement, standing with no papers to aid him, is quick, confident, and at ease with light bantering with the justices. Carvin is aggressive and tenacious. The Court’s conservative justices, frankly, also are better questioners than their colleagues on the left, although that is slowly changing as Kagan and Sotomayor gain experience.
In the end, scholars and others who closely followed the mandate arguments agreed that Verrilli made the points that he needed to make. Working off of Judge Jeffrey Sutton’s opinion in the Sixth Circuit, Verrilli stressed the unique features of the health insurance market. Because everyone would enter the market but there is no control over when, an insurance requirement in advance of the point of sale was justified. It was an application of the commerce clause, not an extension of it. Based on their later questions to Clement, both Roberts and Kennedy understood the government’s argument, if not persuaded by it. Verrilli also reinforced the tax power argument from the previous day.
There was no question that it was a bad day for the government. There also was a surprising partisan overtone to some of the questions by Scalia and Alito. Scalia in particular seemed to be repeating the opponents’ talking points and was the first to raise the broccoli argument against the individual mandate (if the government could force individuals to buy health insurance, it also could require them to buy broccoli). He later also referred to the so-called Cornhusker kickback amendment as if he believed it was still in the law, even though it had been removed two years earlier. And he startled the audience when, after Verrilli explained that we as a society had obligated ourselves to care for the uninsured when they showed up in emergency rooms for care, the justice leaned forward to retort, “Well, don’t obligate yourself to that!”
The third and last day was not a good one either for the government. At least four justices seemed inclined to strike down the entire law if the mandate was unconstitutional, and the states’ challenge to the Medicaid expansion appeared to make headway with a number of the justices—a remarkable reaction given the fact that the Supreme Court had never found a federal funding condition to be coercive and the federal government was covering the cost of the Medicaid expansion at 100 percent in the first three years and never less than 90 percent permanently.
The arguments ended on Wednesday, March 28, and the justices met the following Friday to vote on the issues.
• • •
The rest of the term might have seemed anti-climactic after the health care arguments, but the justices had other difficult issues to wrestle with and ultimately they did so with a surprising degree of consensus.
They unanimously recognized a “ministerial exception” to the nation’s job-bias laws for religious employers sued for discrimination by employees who act as ministers for their churches. They also agreed that attaching a GPS unit to a vehicle and then using it to monitor a suspect’s movements is a search under the Fourth Amendment. The earlier Texas redistricting decision had been unanimous. The justices also found common ground in two other cases that many expected to divide the Court: defining a fundamental question of what is patentable subject matter, and permitting judicial review of environmental compliance orders under the Clean Water Act.
However, they divided 5–4, in an opinion by Kennedy, that jail officials can conduct strip searches of prisoners to be released into the general jail population without the reasonable suspicion usually required by the Fourth Amendment. Roberts, Scalia, Thomas, and Alito joined Kennedy. And Kennedy joined his liberal colleagues in a 5–4 decision banning life in prison without parole for juvenile murders. As senior justice in the majority, he assigned the opinion to Elena Kagan, her most important opinion since joining the Court.
In one of the term’s most aggressive rulings, Alito led a divided court in Knox v. Service Employees International Union. The case asked the justices if a union was required to send a notice to non-union members
before deducting certain fees from their paychecks in a special assessment to challenge two state ballot referenda. The Court, voting 7–2, held that the union failed to give proper notice. That should have been the end of the case; but Alito, in a second ruling for the five conservative justices, overruled a long-standing precedent which had held that the First Amendment required unions to give non-union employees covered by union contracts the opportunity to opt out of special fees. The majority held that the union cannot require non-members to pay unless those members affirmatively opt in: a blow to unions’ ability to raise money.
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 persuasiv
e 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.”
