by Marcia Coyle
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.”
All of which makes the possibility of long-term fallout among the justices because of the Affordable Care Act decision difficult to believe.
The leak report also said, “Some people say you would have to go back nearly 70 years to see this kind of tension, and almost bitterness, that now exists among the justices.” Seventy years ago is a return to the Court of Douglas, Frankfurter, Robert Jackson, and Hugo Black. In his book Scorpions, Noah Feldblum describes those years as a time of bitter rivalries and invective among those justices.
When the term ended, several justices traveled overseas to teach and others left the city for favorite summer vacation spots. One justice predicted that the fall of 2012 would bring cooler temperatures inside the Court as well as outside.
“Everyone here does have the sense the institution is so much more important than the nine who are here at any point in time and we should not do anything to leave it in worse shape than it was in when we came on board,” said the justice. “My guess is we’ll come back in the fall and have the opening conference and it will be almost the same. I would be very surprised if it’s otherwise.”13
• • •
The justice appeared to be right when the new term opened on October 1, 2012. The justices seemed to be engaged in business as usual and there was no visible sign of the tensions that marked the end of the prior term. However, the new term once again threatened to expose deep divisions and to trigger high emotions.
Unlike the health care term, in which the justices struggled with structural issues concerning the roles and powers of the national and state governments under the Constitution, the new term raised issues of equality that would play out in challenges involving affirmative action, same-sex marriage, voting rights, and perhaps even abortion before the final day.
And those issues in the new term again present a challenge for Chief Justice Roberts, who had espoused consensus, humility, and modesty in making decisions during his confirmation hearings.
Roberts’s upholding of the individual mandate in the health care law was the first time he had joined the Court’s liberal wing in a 5–4 decision since becoming chief justice. Despite criticism by bitter and disappointed opponents of the law who questioned his conservative credentials, Roberts is no liberal, not even close. However, he is the chief justice of the United States, and as one justice, referring to the justices’ alignments last term in the health care and the Arizona immigration decisions, noted: “The institution [Supreme Court] moves you, and perhaps even more a chief justice.”
That is not to say that Roberts’s decision was unprincipled.
Read his decision, Justice David Souter would say. What is not clear yet is the long-term significance of the commerce clause and Medicaid rulings. Roberts and the Court’s four other conservatives approved a new limit on Congress’s lawmaking power under the commerce clause, perhaps ultimately the most important limit in more than seventy years. How that will affect Congress’s ability to address national problems, for example, a health crisis requiring mass inoculations, is yet unknown. And because of the Medicaid ruling, seven justices opened to potential challenges numerous federal programs that place conditions on states in return for federal funding.
Seven years before Roberts faced the most challenging case of his career, he sat in a Senate hearing room, a stone’s throw from the Court to which he had just been nominated. A Democratic senator, not expecting an answer, asked: “What kind of justice will John Roberts be? Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter and Friendly?”
Those four judges were practitioners of judicial restraint, long the mantra of the conservative legal community. It emphasizes deference to legislative bodies and respect for past precedents. Robe
rts claims that tradition when, in his health care opinion, he quotes an earlier Court, saying, “ ‘Proper respect for a co-ordinate branch of the government’ requires that we strike down an Act of Congress only if ‘the lack of constitutional authority to pass [the] act in question is clearly demonstrated.’ ”
In the health care battle, ironically, the liberal legal community, often accused of promoting judicial activism, was urging judicial restraint, and many in the conservative legal community, pushing a novel and “off the wall” commerce clause theory, were seeking judicial activism.
Roberts’s decision and the joint dissent by Kennedy, Scalia, Thomas, and Alito also reflected two different views of what judicial restraint should have dictated that the Court do. For Roberts, it was the view of Harlan, Frankfurter, Jackson, and Friendly: If there is a reasonable construction of the law, save it. For the joint dissenters, judicial restraint meant: Strike down the law in order to enforce or protect the Constitution’s limits on federal power.
Before the health care ruling, the constitutional law scholar and former acting solicitor general Neal Katyal, in a question-and-answer article in The Washington Post, said he thought “one of the hardest things about constitutional law is that there aren’t clear answers to questions. There’s some room for discretion on the part of judges.”14
As the health care litigation in the lower courts and in the Supreme Court showed, reasonable judges and justices have different ways of finding the answers, and often in ways that defy ideology and politics.
In the years since the senator asked what kind of justice Roberts would be, Roberts has acted with a boldness that angered those on the left on issues of race, guns, and campaign finance, and with restraint and modesty at times that frustrated those on the right. Each term is a story in itself. With the health care decision, the Kennedy Court faded into the background and the Roberts Court firmly emerged.
There are many more stories to be told. With same-sex marriage, affirmative action, and voting rights on the docket in the 2012–13 term, a story dramatically different from the prior term may unfold. But at least for the one term that will be known always for its historic, landmark health care decision, Roberts could answer that senator’s long ago question about whether he would be a moderate, temperate judge like Harlan, Jackson, Frankfurter, and Friendly, with a simple “Yes.”
JUSTICES
(1) Chief Justice John G. Roberts Jr.
(2) Senior Associate Justice Antonin Scalia
(3) Associate Justice Anthony Kennedy
(4) Associate Justice Clarence Thomas
(5) Associate Justice Ruth Bader Ginsburg
(6) Associate Justice Stephen Breyer
(7) Associate Justice Samuel Alito Jr.
(8) Associate Justice Sonia Sotomayor enjoyed a moment during her 2009 Senate confirmation hearing.
(9) Associate Justice Elena Kagan listened to senators’ questions during her 2010 confirmation hearing on her nomination.
(10) Associate Justice Sandra Day O’Connor left the Court in 2006 to care for her ailing husband. Justice Samuel Alito Jr. took her seat on the bench.
(11) Associate Justice David Souter retired in 2009 and was succeeded by Justice Sonia Sotomayor.
(12) Senior Associate Justice John Paul Stevens stepped down from the Court in 2010. Justice Elena Kagan assumed his seat.
RACE
(13) Kathleen Brose, head of Parents Involved in Community Schools, led the organization’s legal fight against the Seattle School District. Harry Korrell, center, handled the lawsuit and argued in the Supreme Court; Brian Hodges, right, of the Pacific Legal Foundation assisted.
(14) Students at Ballard High, considered the preferred public high school by many parents, funnel into a hallway between classes.
(15) Sharon Browne of the Pacific Legal Foundation aided the Seattle and Louisville parents challenging their districts’ use of race to assign students.
GUNS
(16) Clark Neily of the libertarian Institute for Justice and a colleague decided over drinks one evening that the time was right for a Second Amendment challenge.
(17) Robert Levy, a self-made millionaire and libertarian, agreed to finance the Second Amendment challenge to the District of Columbia’s gun ban.
(18) Richard Heller, a private security guard, became the lead plaintiff in the challenge to the gun ban.
(19) Alan Gura was brought on board by Clark Neily and Robert Levy to lead the lawsuit against the District of Columbia and to argue in the Supreme Court that the Second Amendment guaranteed an individual right to possess a gun.
(20) Alan Morrison developed the District of Columbia’s defense of its gun ban in the Supreme Court until D.C. Attorney General Peter Nickles replaced him with Walter Dellinger.
(21) After Supreme Court arguments in the gun case, D.C. Attorney General Peter Nickles (l), Walter Dellinger (c) and D.C. mayor Anthony Fenty (r) walked down the Court steps to meet the press.
(22) Gun rights demonstrators rallied outside the Supreme Court.
MONEY
(23) David Bossie, president of Citizens United, created Hillary: The Movie and challenged federal campaign finance restrictions.
(24) Senators Russell Feingold (l) and John McCain (r) authored the Bipartisan Campaign Finance Reform Act at the center of the battle in Citizens United v. FEC.
(25) Prominent conservative lawyer James Bopp Jr. was hired by Bossie to take Citizens United’s challenge to the Supreme Court.
(26) Former Bush solicitor general Theodore Olson successfully argued in Citizens United that federal campaign finance restrictions violated the Constitution.
HEALTHCARE
(27) Washington lawyer David Rivkin laid the early legal groundwork for the state attorneys general’s challenge to the federal healthcare law.
(28) Florida attorney general Bill McCollum took the lead in organizing the state attorneys general in their challenge to the healthcare law.
(29) Acting Solicitor General Neal Katyal led the Obama administration’s defense of the healthcare law in the lower appellate courts.
(30) Law professor Randy Barnett crafted a key legal argument against the constitutionality of the healthcare law.
(31) Healthcare law supporters demonstrated outside the Supreme Court during arguments.
(32) Former Bush solicitor general Paul Clement was hired to represent the twenty-six state attorneys general challenging the federal healthcare law in the Supreme Court.
(33) Washington lawyer Michael Carvin argued against the healthcare law in the Supreme Court on behalf of the National Federation of Independent Business.
(34) Obama solicitor general Donald Verrilli Jr. defended the constitutionality of the healthcare law in the Supreme Court.
(35) Supporters and opponents of the healthcare law awaited the Supreme Court decision.
ACKNOWLEDGMENTS
The U.S. Supreme Court is one of the best and one of the strangest beats for a journalist. It is one of the best because there is constant variety in the cases that the justices hear and constant challenges in understanding the legal issues at the core of those cases. Behind even the dullest or most complex tax or ERISA case there often is a very human story waiting to be told. And the Supreme Court correspondent gets a number of opportunities as well to be a witness to history from Senate confirmation hearings to decisions that dramatically affect the nation.
The beat is also one of the strangest for a reporter because there is so little direct contact with the primary sources of the news—the justices. The reporter cannot call up the justice who wrote a majority opinion and ask, “Now what exactly did you mean by the fourth paragraph on page twenty-seven of your opinion?” The justices are notoriously, and unfortunately, reluctant to grant on-the-record interviews. Supreme Court reporters learn about the Court and the justices themselves through the justices’ opinions and by observing them during oral arguments.
We also look to some of the brightest and most dedic
ated lawyers and law professors across the political spectrum who have spent years practicing before the Court and studying their decisions and the development of the law. As a reporter for The National Law Journal, I have benefited tremendously over the years in my work in general and in this book in particular from their willingness to give generously of their time and knowledge. There are too many to mention by name. I owe much to Rick Hasen of the University of California Irvine School of Law and Brad Smith of Capital University Law School for always responding to questions about campaign finance laws. Walter Dellinger of O’Melveny & Myers and Ted Olson of Gibson, Dunn & Crutcher, two of the busiest and finest appellate court practitioners, have shared their expertise with me not just for this book but for countless articles that I have written in the last twenty-five years, and I am truly grateful because there is always something new to learn about the Supreme Court, and they are superb teachers.
