The Oath

by Jeffrey Toobin

  In early June, Roberts circulated an opinion that declared that Congress had violated the commerce clause by imposing the individual mandate but that upheld the mandate as an exercise of the taxing power. The chief justice worked hard to try to bring Kennedy to his side. He turned one of Kennedy’s questions in oral argument into part of his opinion, practically verbatim. Kennedy had told Verrilli: “Here the government is saying that the federal government has a duty to tell the individual citizen that it must act … and that changes the relationship of the federal government to the individual in a very fundamental way.” Roberts wrote: “Accepting the government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the federal government.” Neither man budged.

  One clue about the resolution of the health care case appeared in plain view—and still everyone missed it. On June 15, Ginsburg spoke to the national convention of the American Constitution Society, the liberal counterpart to the Federalist Society. For the most part, she limited herself to an anodyne review of the cases decided by the Court so far, but she also warned that there were sharp disagreements ahead. In sum, Ginsburg said, the year “has been more than usually taxing.”

  ——

  Scalia was enraged at the chief. On Monday, June 25, when the Arizona immigration case was announced, Scalia’s dissenting opinion marked his transition from conservative intellectual to right-wing crank. Speaking from the bench, he ranged over contemporary controversies, whether or not they had any relevance to the Arizona case. He noted, for example, that Obama had recently used an executive order to accomplish some of the goals of the DREAM Act and exempt certain young people from deportation. (This decision came well after the Arizona case was argued and was legally irrelevant to the issue at hand.) “The president said at a news conference that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the Immigration Act,” Scalia said. “Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind.” Scalia did not explain how declining to deport these individuals boggled his mind.

  “The issue is a stark one,” he went on. “Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws? A good way of answering that question is to ask: Would the states conceivably have entered into the union if the Constitution itself contained the Court’s holding?” If this had been the original view of the framers of the Constitution, “the delegates to the Grand Convention would have rushed to the exits from Independence Hall.” In other words, according to Scalia, if Arizona had known what was coming from his colleagues in 2012, the state never would have joined the Union. No other state would have either. The Arizona ruling, in Scalia’s telling, would have destroyed the country even before it was born.

  Scalia was indeed unhappy with the immigration decision, but the splenetic excess of his Arizona opinion owed far more to his failure (as yet unknown to the public) in the health care case.

  The last few weeks of a Supreme Court term are always tense and confusing. Only the most controversial cases remain. Drafts of opinions fly between chambers. Memos comment on the opinions, and some propose alternatives, which in turn lead to more correspondence. The goal among the justices is always the same: to receive memos from colleagues that say, in the peculiar diction of the Court, “Please join me.” That’s how justices sign on to one another’s opinions.

  The manic intensity of June 2012 surpassed any year in recent memory. The outcome in National Federation of Independent Business v. Sebelius remained in doubt long after cases were usually settled. Roberts wrote a draft opinion. Ginsburg wrote a draft dissent. As Roberts hedged, Scalia, Kennedy, Thomas, and Alito adopted some of the chief’s arguments as their own—in part as a possible dissent, in part as a lure to Roberts to make a new majority. (Dissenting opinions are invariably written by a single justice; other justices may then sign on. It’s rare, if not unprecedented, for four justices to affix their names as coauthors to a dissent.) With all the changes, the cross-references among the various opinions became confused. The Scalia & Co. opinion referred to the Ginsburg opinion as “the dissent,” when Ginsburg wound up not dissenting, except on the matter of the Medicaid provision. At one point, of course, it did look like the Ginsburg opinion would be “the dissent.” Likewise, the Scalia & Co. opinion for the most part does not even address Roberts’s opinion for the Court, which is unusual in a dissent.

  Still, by the last week in June, the ragged passage had reached an end. By a vote of 5–4, the Court would uphold the heart of the Affordable Care Act. All that was left was to tell the world.

  At ten o’clock on Thursday, June 28, the justices appeared as they always do. The three red curtains parted, pulled open by unseen hands, and the nine materialized simultaneously in groups of three: Roberts, Scalia, and Kennedy in the center; Sotomayor, Breyer, and Thomas on one side; Ginsburg, Alito, and Kagan on the other. On this day, they looked as they had never appeared before: haggard, exhausted, spent. Sotomayor was bent with fatigue; Alito needed a haircut; Kagan seemed thin and drawn. (This was partly intentional; she had lost thirty pounds in a year.) Scalia appeared as he had seven years earlier, when he stood by William Rehnquist’s casket: bereft, heartbroken, and angry, too.

  Even those tortured visages could not prepare anyone for the sound of John Roberts’s voice. The brisk midwestern confidence was gone, replaced by a mournful near whisper. This was an unpleasant duty for him. It took a few minutes to find out why. He began with the commerce clause, and his conclusions were those telegraphed by the oral argument. The individual mandate, Roberts wrote, “does not regulate existing commercial activity. 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.” He went on, “To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.” The mandate, and the law, appeared at that moment as good as dead.

  “That is not the end of the matter,” the chief justice went on. “Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to ‘lay and collect Taxes.’ ” Slowly, as members of the audience looked at one another in astonishment, it became clear that Roberts was endorsing the view that the mandate was a tax. “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” he wrote. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

  There was no grand peroration at the conclusion of Roberts’s remarks—more like an apology. “But the Court does not express any opinion on the wisdom of the Affordable Care Act,” Roberts said. “Under the Constitution, that judgment is reserved to the people.”

  As the senior justice in the minority, Scalia had the right to read the dissenting opinion from the bench. But he was either too tired, too angry, or too overwrought to take on that duty, and he passed it off to Kennedy. “In our view,” he said simply, “the act before us is invalid in its entirety.”

  Ginsburg went last. The statement she read in court marked a notable contrast to the words in her printed opinion. She had written at a time
when it looked like the Court might strike down the individual mandate, or even the full statute. The opinion is caustic, almost bitter. But by the time the Court’s decision was announced, Ginsburg realized, of course, that she had won. Her criticism of Roberts was, accordingly, mild.

  More than any other justice, Ginsburg seemed obsessed with what she called “the broccoli horrible,” and she made sure to take on that argument. “Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so,” Ginsburg wrote. “And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.” (The word “broccoli” appeared twelve times in the course of all the opinions.)

  Ginsburg’s statement in court included an observation that appeared nowhere in her written opinion but served as a fitting epitaph to this epic case. “In the end,” she said, “the Affordable Care Act survives largely unscathed.”

  EPILOGUE

  THE ROBERTS COURT

  On the day after the health care opinion was announced, Roberts went to a judicial conference in Pennsylvania. There he was asked about his plans for the summer. He said he was leaving shortly to teach a class for two weeks in Malta. “Malta, as you know, is an impregnable island fortress,” Roberts said. “It seemed like a good idea.”

  Conservatives turned on Roberts swiftly, and with a vengeance. A Wall Street Journal editorial written on the day of the decision described the chief justice’s opinion as “grim,” “shot through with confusion,” “without real restraint,” “a tragedy,” and “damaging to the Court’s institutional integrity.” Ramesh Ponnuru, the National Review senior editor (and uniquely well-informed Princetonian), wrote that Roberts “acted less like a judge than like a politician, and a slippery one.” Mitt Romney, who had earlier promised to make appointments to the Supreme Court in the mold of Roberts, changed his tune. “Well, I certainly wouldn’t nominate someone who I knew was going to come out with a decision I violently disagreed with—or vehemently, rather, disagreed with,” Romney told an interviewer. “And [Roberts] reached a conclusion, I think, that was not accurate and not an appropriate conclusion.”

  The outrage was understandable. A late and unexpected change of vote by a Republican appointee to the Supreme Court had again cost the conservative movement a cherished goal. The closest parallel was the Casey decision, in 1992, when O’Connor, Kennedy, and Souter (all Republican appointees) joined with Stevens and Harry Blackmun (also Republican appointees) to save the core of Roe v. Wade and thus to preserve abortion rights. In a way, Roberts’s betrayal was more agonizing. Unlike the members of the Casey trio, Roberts had never before sided with the liberals in a major contested case. And in the health care case, Roberts even embraced the conservatives’ main argument, about the commerce clause. Victory was within reach!

  But then, at the last moment, Roberts reached out for a subsidiary argument, about the taxing power—which had been only lightly briefed by the parties—to change the result in the case. And the chief justice’s description of the individual mandate as a tax rather than a penalty might charitably be described as plausible at best. (To this point in the litigation, no other judge had upheld the ACA on that ground.) And in the same opinion, of course, while Roberts said the ACA was a tax for constitutional purposes, he also said that the law was not a tax for purposes of the Anti-Injunction Act. Some cynicism from conservatives, to say nothing of frustration, seemed reasonable.

  In fact, for Roberts personally and the conservative cause generally, his vote and opinion in the health care case were acts of strategic genius. One cannot know for sure how future courts will interpret the decision in National Federation of Independent Business, but Roberts at a minimum laid down a marker on the scope of the commerce clause. As Ginsburg noted in her opinion, Roberts’s “rigid reading of the Commerce Clause makes scant sense and is stunningly retrogressive,” possibly even auguring a return to the pre-1937 days when the Court invalidated economic regulations with regularity. Roberts’s opinion is potentially a significant long-term gain for the conservative movement.

  In the short term, Roberts took the Supreme Court off the Democratic agenda for at least the foreseeable future. With the exception of Obama’s complaint about Citizens United at the State of the Union in 2010, the president showed little interest in using opposition to the Court as a political weapon; the ruling in the health care case guaranteed that Obama would keep his distance for the duration of the 2012 campaign. In addition, Roberts bought enormous political space for himself for future rulings. In the Court’s 2012–13 term, the justices will take nearly as many combustible issues as they did in the previous year. They will render a verdict on affirmative action in college admissions in a case from the University of Texas, raising the possibility that they will overturn O’Connor’s signature achievement in the Grutter case of 2003. They will examine the future, if any, of Section 5 of the Voting Rights Act of 1965—which has long required mostly southern states to obtain Justice Department permission before making any changes in their electoral rules. Roberts is long on record as being deeply skeptical of any consideration of race by the government. The Court will probably also decide the fate of the Defense of Marriage Act, in the first major test of gay rights in the Roberts Court. Controversies related to Citizens United will also likely return in different forms. In these and other cases, Roberts can advance the conservative movement—and, after health care, he runs little risk of embroiling the Court in partisan politics.

  Did Roberts, by his late switch in the health care case, poison his relations with his conservative allies on the Court? That is very unlikely. On the very night of the Court’s decision, June 28, Thomas attended a dinner in Washington for local alumni of Yale Law School. (In December 2011, Thomas finally ended his long estrangement from his alma mater with a cheerful visit to New Haven.) In a question-and-answer session with attendees, Thomas paid a lengthy tribute to the way Roberts handled the health care case. Given the complexity and competing pressures, Thomas said, “he handled it just right.” Several days later, Kennedy spoke to a gathering at the Aspen Institute, where he made a pointed defense of a justice’s right to change his mind while a case was pending. He noted he had often done it himself. Scalia was furious, but what did Roberts have to fear from his senior colleague? After all, at this late date Scalia was not going to start moving to the left to punish the chief. Anyway, even by Supreme Court standards, Scalia was old—and Roberts was still young. Leaks before and after the decision were more likely the work of petulant law clerks rather than of their bosses. The justices knew where the power resided on the Supreme Court, and they understood that it seldom paid to hold grudges against colleagues.

  Conservatives and liberals, on the Court and off, recognized the health care decision for what it was: an act of leadership by the chief justice. It’s John Roberts’s Court now.

  “Good afternoon,” President Obama said in the East Room of the White House. “Earlier today the Supreme Court upheld the constitutionality of the Affordable Care Act, the name of the health care reform we passed two years ago. In doing so, they’ve reaffirmed a fundamental principle: that here in America, in the wealthiest nation on earth, no illness or accident should lead to any family’s financial ruin.” He said nothing more about the decision, preferring instead to tout the benefits of the reform plan itself.

  The Obama administration illustrated a fundamental difference between contemporary Republicans and Democrats. Starting with Ronald Reagan and proceeding through both sets of Bush years, Republicans demonstrated a profound commitment to their vision of the Constitution. There was a Republican judicial agenda for change: expand executive power, end racial preferences intended to assist African Americans, speed up executions, prohibit all forms of gun control, welcome religion into the public sphere, deregulate politic
al campaigns, and, above all, reverse Roe v. Wade and allow states to ban abortion. There was a Republican judicial philosophy: originalism. Republican presidents talked publicly about this agenda. They made judicial appointments, including to the lower courts, a major priority. Republican legislators fought for their party’s judicial nominees—and obstructed and harassed Democratic nominees to the courts, even uncontroversial ones.

  Barack Obama was not only an outstanding law student and a practicing lawyer but also, as he often pointed out during his first campaign for president, a professor of constitutional law. In the White House, he enjoyed reminding his subordinates of his mastery of legal issues. (On greeting a delegation from his counsel’s office, the president sometimes joked, “Oh, the lawyers! This is the easy part of my day.”) But Obama rarely discussed the Constitution outside the Oval Office.

  Obama made two sterling appointments to the Supreme Court, and he was justly proud of these accomplishments. But his interest in judicial nominations appeared almost to have begun with Sonia Sotomayor and ended with Elena Kagan. Obama’s lassitude regarding the lower courts was astonishing. In the summer of 2012, when the Senate more or less shut down confirmations until the election, there were 77 vacancies on the federal bench out of a total of about 874 judges. At that point, Obama had failed even to submit nominations for 43 of the judgeships, and Republicans will prevent many of Obama’s 34 nominees from coming up for votes. During Obama’s presidency, Republicans engaged in an unprecedented level of obstruction toward Obama’s judicial nominees; they filibustered and threatened filibusters against more judges than Democrats did in the Bush years. But Republicans could hardly be blamed for blocking judges that Obama failed to nominate in the first place. And since Obama almost never discussed the issue in public, Republicans faced no political consequences for delaying or obstructing confirmations. In the early days of Obama’s administration, it was plausible to blame this failure on staffers like Greg Craig or Cassandra Butts; by the end of his term, the only reason could be that the president himself chose not to invest his own time or effort in the issue.