——
By Wednesday, the justices were punchy. They dedicated one hour of oral argument to most cases. For certain important cases, they gave somewhat more. The second Citizens United argument took an hour and a half. But the six hours over three days for health care was the most they had devoted to any case in forty-five years. (Oddly, the Court had allotted eight hours in 1967 to an obscure and long-forgotten case about natural gas rates in western Texas and southeastern New Mexico.)
The Wednesday morning argument concerned the issue of severability. If the Court found the individual mandate unconstitutional, how much of the law would be invalidated—all of it or just part? The liberals could tell that the previous day’s contest had gone badly for their side, so they argued, with some desperation, that the Court should invalidate only part of the law at most. As Ginsburg put it, “Mr. Clement, there are so many things in this Act that are unquestionably okay. I think you would concede that reauthorizing what is the Indian Healthcare Improvement Act, changes to the Black Lung benefits, why make Congress redo those?… So why should we say, it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.”
Breyer made an almost poignant pitch for his favorite kind of solution: a “workable” compromise. Since parts of the law were clearly controversial and parts were not, could not the lawyers make those distinctions themselves?
Breyer said to Edwin Kneedler, the deputy solicitor general, who was representing the government in this part of the case: “Do you think that it’s possible for you and Mr. Clement, on exploring this, to get together and agree on”—the audience started laughing—“I mean, on a list of things that are, in both your opinions, peripheral. Then you would focus on those areas where one of you thinks it’s peripheral and one of you thinks it’s not peripheral. And at that point, it might turn out to be far fewer than we are currently imagining …” Kneedler politely demurred, as if the suggestion came from a harmless eccentric.
Once more, Kennedy displayed a breathtaking sense of his own power. Kneedler asserted, with good reason, that the principle of judicial restraint would suggest that the Court should strike down as little of the law as possible. In other words, the Court should eliminate the unconstitutional parts of the law (if any) and leave the rest. Kennedy objected to this notion.
“When you say ‘judicial restraint,’ you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act,” Kennedy said. “I suggest to you it might be quite the opposite. We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike the whole.”
“I—I think not, Justice,” Kneedler stammered, incredulous. Only Anthony Kennedy could assert that eliminating more rather than less of plainly constitutional statutes represented “judicial restraint.” (It is notable too that Kennedy expressed particular concern for the effect of the law on insurance companies, not the millions of individuals who would receive insurance coverage.)
Scalia, by the end of the day, only wanted to get laughs. When Kneedler made the reasonable suggestion that the Court would have to separate the constitutional parts of the law from the unconstitutional, Scalia shot back, “Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?” In other words, making them read so much would be “cruel and unusual punishment.” Scalia went on, “And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?” More laughter. “Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?”
At one point, Scalia grew so raucous that the chief justice had to shut down his comedy routine, saying, “That’s enough frivolity for a while.”
As the six long hours came to a close, with a discussion of whether the expansion of Medicaid imposed unconstitutional duties on the states, the differences between Roberts and Scalia appeared to be more than just stylistic. Scalia had taken every opportunity to announce his hostility to the law—and his belief that the whole law, not just the individual mandate, had to be invalidated. Kennedy and Alito were nearly as contemptuous of Congress’s, and President Obama’s, work. To be sure, Roberts did not sound like his four liberal colleagues—who were clearly boosters of the law—nor did the chief justice publicly commit himself to the law’s demise.
At 2:24 p.m. on Wednesday, March 28, Roberts said, “The case is submitted.”
* Immediately after the argument, no one was more critical of Verrilli’s performance, or more wrong about its impact on the justices, than I was.
23
THE “EFFECTIVE” ARGUMENT
On Friday, March 30, Roberts gathered his eight colleagues around the table in his conference room to vote on the health care case.
The Supreme Court was actually considering consolidated appeals from several health care decisions by the circuit courts. The lead case was known as National Federation of Independent Business v. Sebelius, which was the Eleventh Circuit decision striking down the individual mandate. In accord with the Court’s custom, the chief justice introduced the case, defined the issues, and opened the discussion. According to the same informal rules, no justice spoke twice before everyone had a chance to speak once. Then, in order of seniority, Roberts called on each justice to vote.
Scalia: affirm.
Kennedy: affirm.
Thomas: affirm.
Ginsburg: reverse.
Breyer: reverse.
Alito: affirm.
Sotomayor: reverse.
Kagan: reverse.
Four to four.
Chief Justice Roberts would decide the outcome of the case.
In the conference room, Roberts sometimes looked wistfully at Charles Evans Hughes’s massive desk, which anchored one wall. Hughes would occasionally preside from the desk, while his colleagues sat like supplicants at the conference table. Roberts had no comparable sway. He couldn’t even control the conference table itself, much less the decisions made there, without dissent. When Roberts had the temerity, as part of the Court renovation project, to rotate the conference table by ninety degrees, Stevens launched an extended attack on the decorating decision in his memoir, Five Chiefs. “Some might consider the change trivial,” Stevens wrote, but he then devoted several pages to disparaging the alteration. Stevens said the new location of the table left insufficient room for the justices’ carts containing their research material; it was too far from the telephone; there was less space for coffee and baked goods; it made it harder for the justices to autograph group photographs at the same time; the acoustics were worse.
Roberts’s vote in the health care case would trump even Citizens United as a symbol of his tenure. Citizens United defined the public image of the Roberts Court in the way that Bush v. Gore, another decision steeped in partisan politics, symbolized the Rehnquist Court. In terms of public perception, the health care case represented the third installment of this legal trilogy—the next occasion when the Court would wade into the political thicket. Unlike Bush v. Gore and Citizens United, the newer case did not deal directly with the business of elections but instead represented something almost as inflammatory: the Republican-dominated Court’s verdict on the central achievement of a Democratic president.
Roberts told his colleagues that, as he had indicated at oral argument, he thought Congress had exceeded its powers under the commerce clause in creating the individual mandate. This position was in accord with Scalia, Kennedy, Thomas, and Alito. It was less clear to his colleagues how the chief felt about the other questions in the case. Most import
antly, what did the commerce clause ruling mean for the future of the health care law as a whole? Would just the individual mandate be struck down? Or the whole law? And what of the law’s imposition on the states to expand Medicaid coverage? Was that permissible? Discussions at conference are conducted at a fairly general level. The details are worked out in the opinions. Roberts assigned himself National Federation of Independent Business v. Sebelius. His colleagues would see a draft in about a month, which was normal for a major case.
——
Roberts and the other justices couldn’t simply devote themselves to resolving the health care case. They had to keep up with the rest of their calendar, too. On April 25, the last day of oral arguments for the term, the justices heard a challenge to Arizona’s immigration law, which included several measures to limit illegal immigration and punish undocumented people who were already in the state. The measure, known as SB 1070, had received a great deal of criticism for its possible effect on the lives of Hispanics in the state, but the Obama administration challenged the law on narrower grounds—that the state infringed on responsibilities that belonged exclusively to the federal government.
After the Arizona case was argued, Roberts joined Kennedy, Ginsburg, Breyer, and Sotomayor in a compromise verdict. (Kagan did not participate.) The justices found that three provisions of the law, including one that banned undocumented immigrants from seeking work, were preempted by federal law. But the five justices also upheld the most controversial part of SB 1070—the so-called “show me your papers” provision, which expanded the ability of state law enforcement officers to inquire about individuals’ immigration status.
Scalia disagreed—vehemently. His passions had shifted in recent years from the scholarly to the political. Increasingly, his preoccupations, with topics like illegal immigration, mirrored those of Fox News. (Barack Obama himself was another Scalia fixation.) All justices have a political ideology as well as a legal philosophy—that’s a big reason presidents choose them in the first place—but Scalia was letting the two merge in an ever more public way. Implicitly, if not explicitly, Scalia expected his colleagues, including the chief justice, to share his obsessions.
At the same time, Scalia was making it clear that he thought Roberts’s opinion in the health care case should strike down the entire law, not just the individual mandate. Based on the oral argument, this result was obviously a possibility, but the implications of such a resolution weighed on Roberts. The law had dozens of provisions, many of them uncontroversial, many also critical to continued operations of both the federal government and all fifty states. (Pursuant to the law, for example, many millions of federal dollars had already been transferred to the states to pay for the existing Medicaid system; that whole system would have been thrown into chaos if the law had been completely struck down.)
Roberts was a conservative and a lifelong partisan Republican. The chief justice had no particular affection for Obama. Roberts had dual goals for his tenure as chief justice—to push his own ideological agenda but also to preserve the Court’s place as a respected final arbiter of the nation’s disputes. Scalia’s vision of the justices as gladiators against the president unnerved Roberts. A complete nullification of the health care law on the eve of a presidential election would put the Court at the center of the campaign, especially if the majority in the case consisted only of the five Republican appointees. Democrats, and perhaps Obama himself, would crusade against the Court, eroding its moral if not its legal authority. As chief justice, Roberts felt obligated to protect the institutional interests of the Court, not just his own philosophical agenda.
Gradually, then with more urgency, Roberts began looking for a way out.
Don Verrilli had given it to him. Verrilli always liked the taxing power argument. No one doubted that Congress had the constitutional power to levy taxes, even if any individual decision to do so could be politically fraught. When the first cases against the health care law had been filed, in 2010, lawyers in the White House had been squeamish about using the taxing power argument. Obama had promised that the ACA would not represent a tax increase and, more generally, politicians never want to be associated with taxes. But as judges began to take the commerce clause challenge more seriously, the politicos deferred to the lawyers and allowed them to use the taxing power argument.
Verrilli was determined to raise the issue during oral argument. Toward the end of his defense of the individual mandate, Verrilli tried to pivot to the subject off a question from Roberts, saying, “Mr. Chief Justice, let me answer that, and then if I may, I’d like to move to the tax power argument.”
Scalia cut him off with another wisecrack, which drew laughter. Roberts, Scalia, and Alito jumped in with questions, until finally Sotomayor came to Verrilli’s rescue, saying, “General, could you turn to the tax clause?”
“Yes,” Verrilli said.
Soon enough, though, Scalia spoke up and tried to embarrass Obama. “The president said it wasn’t a tax, didn’t he?” Scalia asked Verrilli. “Is it a tax or not a tax? The president didn’t think it was.”
Verrilli was ready for this: “The president said it wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance. I don’t think it’s fair to infer from that anything about whether that is an exercise of the tax power or not.”
Then came an exchange that passed quickly but turned out to be of considerable significance. “Why didn’t Congress call it a tax, then?” Roberts asked.
“Well—” Verrilli began.
“You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?”
Verrilli answered: “They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objectives. But it is in the Internal Revenue Code, it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say—”
The word “effective” amused the chief justice. “Well, that’s the reason,” Roberts said with a big smile. “They thought it might be more ‘effective’ if they called it a penalty.” Verrilli meant “effective” in the sense that the fee would compel people to buy insurance. But Roberts, a Washington veteran, knew the real reason Obama and the Democrats in Congress didn’t use the word “tax”—because it was more politically “effective” to avoid it.
In any event, the tax argument stayed with the chief justice.
In April and May, it started to become apparent to the other justices that Roberts was going “wobbly” in his determination to overturn the law. Votes are never final until the decisions are announced in open court. Votes at conference are by definition tentative. It is well within the bounds of acceptable behavior for justices to change their minds once opinions begin circulating. Still, that rarely happens. But now, it appeared it was happening with Roberts—in the most important case of his tenure as chief justice.
What happened next was unprecedented in recent Supreme Court history. For pending cases, the Court had a nearly perfect record for avoiding leaks. But conservatives on the Court—especially law clerks—were so outraged that Roberts might betray them that they started to talk.
The chatter became so pervasive that, in short order, prominent conservatives decided to challenge Roberts to stick to his guns in the health care case. On May 22, an editorial in the Wall Street Journal, referring to recent remarks by Senator Patrick Leahy, said, “You can tell the Supreme Court is getting closer to its historic ObamaCare ruling because the left is making one last attempt to intimidate the Justices. The latest effort includes taunting Chief Justice John Roberts that if the Court overturns any of the law, he’ll forever be defined as a partisan ‘activist.’ ” That same day, Kathleen Parker, a conservative columnist in the Washington Post, wrote, “Novelist John Grisham could hardly spin a more provocative fiction: The president and his surrogates mount an aggressive campaign to intimidate the chief just
ice of the United States, implying ruin and ridicule should he fail to vote in a pivotal case according to the ruling political party’s wishes. If only it were fiction.”
George Will, the dean of conservative columnists, had heard from a law student who had heard from a law clerk that Roberts was vacillating in the case. On May 25, Will wrote that various progressives were “waging an embarrassingly obvious campaign, hoping [Roberts] will buckle beneath the pressure of their disapproval and declare Obamacare constitutional.” Will concluded, “Such clumsy attempts to bend the chief justice are apt to reveal his spine of steel.”
The following week, the rumors broke into the open, if a panel discussion at a Princeton reunion counts as the open. There, on June 2, Ramesh Ponnuru ’95, a senior editor at National Review, said:
My own sort of educated guess, based on people I talk to at the Supreme Court, is that—Well, as I’m sure people know, there’s an initial vote the same week, on the Friday of the oral arguments. And my understanding is that there was a 5–4 vote to strike down the mandate and maybe some related provisions but not the entire act. Since then, interestingly, there seem to have been some second thoughts. Not on the part of Justice Kennedy, but on the part of Chief Justice Roberts, who seems to be going a little bit wobbly. So right now, I would say, [the outcome of the case] is a little bit up in the air.
Barton Gellman, a writer for Time who was present, tweeted about Ponnuru’s remarks. (Ryan Lizza, the Washington correspondent of The New Yorker, retweeted Gellman’s tweet, as did others.) It may have been just gossip, but it turned out to be remarkably accurate gossip. The story was getting out.
The four conservatives had overplayed their hand with the chief justice. By demanding that Roberts kill off the entire health care law, they prompted him to look for some kind of middle ground. The liberals, in contrast, welcomed any overture from the chief justice. Like the four conservatives, Roberts regarded the expansion of Medicaid as a violation of states’ rights. Even though both Breyer and Kagan had vociferously defended the Medicaid expansion during oral argument, they agreed to join Roberts in striking that portion down—giving the chief valuable political cover on the issue. Roberts now had seven votes on the Medicaid issue.
The Oath: The Obama White House v. The Supreme Court Page 33
