Health Care Act Offers Roberts a Signature Case
Monday, March 12, 2012
Health Care Act Offers Roberts a Signature
Case
By: Adam Liptak, New York Times
WASHINGTON - When Chief Justice John G. Roberts Jr. takes his usual
center seat on the Supreme Court bench on March 26, he will begin
presiding over an extraordinary three days of arguments that will
determine the fate of President Obama's sweeping health care
law.
The decision in the case, expected by June, will have practical
consequences for tens of millions of Americans without health
insurance, and it may affect Mr. Obama's re-election chances.
It will also shape, if not define, the chief justice's
legacy.
Chief Justice Roberts is just 57, and he will probably lead the
Supreme Court for an additional two decades or more. But clashes
like the one over the health care law come around only a few times
in a century, and he may well complete his service without
encountering another case posing such fundamental questions about
the structure of American government.
The case will require the chief justice to choose between two
competing instincts.
On the one hand, he views himself as a steward of the court's
prestige and authority, and he has called for incremental decisions
from large majorities rather than broad but sharply divided
rulings. "As chief justice, Roberts has been extremely careful with
the institutional reputation of the court," said Barry Friedman, a
law professor at New York University who has filed a brief urging
the court to uphold the law.
The court has not rejected legislation as ambitious as the
health care law since the 1930s. There is, moreover, only one
plausible way for the justices to strike down the law, scholars who
study the court say: by a 5-to-4 vote divided along ideological
lines.
All of that might augur a cautious approach.
At the same time, Chief Justice Roberts has embraced an array of
assertive judicial projects that have interpreted the Constitution
in ways that have fundamentally reshaped American law. The court he
has led since 2005 has cut back on campaign spending limits, gun
control laws, procedural protections for criminal defendants and
the government's ability to take account of race in decisions about
employment and education.
Chief Justice Roberts has not exhibited the same intense focus
on the question of federal power that is at the heart of the health
care case, and he has offered only passing hints about his thinking
on the subject. He did surprise some in 2010 by signing, along with
the court's four more liberal members, Justice Stephen G. Breyer's
majority opinion affirming Congressional power to authorize the
continued civil confinement of sex offenders after they have served
their criminal sentences.
That ruling led some observers to say that Chief Justice Roberts
is not as interested in exploring the limits of federal power as
were Chief Justice William H. Rehnquist, who died in 2005, and
Justice Sandra Day O'Connor, who retired in 2006.
"Federalism has less salience with this court than it did with
the Rehnquist court," Sri Srinivasan, then a lawyer in private
practice, said at a Chamber of Commerce briefing in 2010. Mr.
Srinivasan is now principal deputy solicitor general.
Predicting the outcome of the health care case is hard, because
it is both surpassingly important and quite idiosyncratic.
The law, Patient Protection and Affordable Care Act, sets out to
eliminate the United States' status as the only rich country
without almost universal health care. Mr. Obama's aides compare its
significance to that of Medicare or Social Security, while
Republican leaders say it helps move the country dangerously close
to European-style big government.
The court that will hear the health care case is in some ways as
extraordinary as the case itself.
For the first time since at least 1953, when Chief Justice Earl
Warren joined the court, the justices are divided along not only
ideological but also partisan lines: its five more conservative
members were all appointed by Republican presidents and its four
more liberal members by Democrats.
Add to that the conventional wisdom about which votes in the
health care case are fixed in concrete: the four justices appointed
by Democrats are thought certain to vote to uphold the law, and
Justice Clarence Thomas, appointed by the elder George Bush, is
believed to be a sure vote to strike it down.
The consensus among scholars and Supreme Court practitioners is
that Chief Justice Roberts is unlikely to add the fifth vote to
those of the four justices in the court's liberal wing to uphold
the law. But he is said to be quite likely to provide a sixth vote
should one of the other more conservative justices decide to join
the court's four more liberal members.
Either way, then, the chief justice is likely to be in the
majority. Indeed, in the last two terms Chief Justice Roberts has
been in the majority at least 90 percent of the time, a distinction
he shares with only Justice Anthony M. Kennedy, the court's swing
justice.
Should a closely divided court strike down the health care law,
the decision will call to mind Bush v. Gore in 2000 and Citizens
United v. Federal Election Commission in 2010. They were 5-to-4
rulings decided along ideological lines, but there were Republican
appointees on both sides.
Chief Justice Roberts was not on the court when Bush v. Gore was
decided (though he played a minor role in assisting George W.
Bush's legal team as a lawyer in private practice). Citizens United
is another matter: it is easily the most divisive decision issued
by the Roberts court and so one from which he may have drawn
lessons.
"In all the years he has been on the court, there had been only
one firestorm, and that was Citizens United," Professor Friedman
said. "And I don't think he anticipated that reaction."
The reaction to the ruling on the health care law, which will
probably land just as the presidential campaign enters its final
stretch, will probably be even greater. And unlike Citizens United,
which overturned part of a law that predated Mr. Obama's
presidency, the health care law is his signature domestic
accomplishment.
The six hours the court will devote to arguments is a testament
to the case's importance. The last time the court heard longer
arguments in a politically charged case was in 1966, over the
Voting Rights Act, a crowning achievement of the civil rights
movement.
And the last time the Supreme Court ruled that a major piece of
economic legislation was beyond Congressional power to regulate
commerce was in 1936, when the court struck down minimum-wage and
maximum-hour requirements in the coal industry.
James F. Simon, a law professor at New York Law School, said the
battle over the health care case was reminiscent of the showdown
between the Supreme Court and President Franklin D. Roosevelt over
the New Deal. Chief Justice Charles Evans Hughes, who led the court
from 1930 to 1941, had much in common with Chief Justice Roberts,
said Professor Simon, the author of a new book, "FDR and Chief
Justice Hughes."
"He was, like Roberts, a brilliant lawyer and clearly had
command of the cases and the calendar," Professor Simon said. "He
was trying to hold the court together, and he was trying to show it
was impartial."
But there are differences, too. "Hughes came out of the
progressive wing of the Republican Party," Professor Simon said,
noting that Chief Justice Hughes voted to uphold major pieces of
New Deal legislation. "Roberts, on the other hand, comes out of the
conservative wing of the Republican Party."
Chief Justice Roberts is not an entirely blank slate when it
comes to the scope of the Constitution's commerce clause. He
signaled sensitivity to its limits in his very first judicial
opinion, not long after he joined the United States Court of
Appeals for the District of Columbia Circuit in 2003. In it, he
unsuccessfully urged the court to reconsider a decision allowing
Congress to protect endangered species under the clause. The case
concerned, he said, "a hapless toad that, for reasons of its own,
lives its entire life in California."
He also addressed the commerce clause at his confirmation
hearing in 2005. "It is a broad grant of power," he said of the
clause. "This body," he added, referring to Congress, "has the
authority to determine when issues affecting interstate commerce
merit legislative response at the federal level."
Opponents of the health care law say a decision sustaining it
would empower Congress to pass laws concerning essentially every
aspect of American life in the name of regulating commerce. The
law's supporters say a decision in their favor would leave in place
significant limits; for example, Congress may act only to address
national problems that are economic in nature. They add that
political considerations are a further constraint.
After the justices hear arguments, they will gather for a
private conference and cast tentative votes. Then Chief Justice
Roberts will, if he is in the majority, exercise one of the
prerogatives of his position: he will choose who will write the
majority opinion.
In major cases, chief justices have not hesitated to choose
themselves. Whichever way the health care case comes out, the task
of explaining the ruling to the American public is likely to fall
to Chief Justice Roberts.