The Oath (44 page)

Kennedy then brought the issue back to the critical question in the case: “Well, then your question is whether or not there are any limits on the commerce clause. Can you identify for us some limits on the commerce clause?”

It was here that the differences between Katyal’s and Verrilli’s arguments were most stark. Katyal had grown up in a world dominated by conservatives, and he tailored his appeal to them. He acknowledged that there were real limits on the power of Congress under the commerce clause. He told the appeals courts that Congress could not regulate quintessential state functions that were local and noneconomic in nature. A criminal law forbidding guns near schools, like the law in
Lopez
, was outside Congress’s power under the commerce clause. Under the commerce clause, Katyal said, Congress could address national economic problems, like health insurance, but not local problems, like guns near schools.

But Verrilli had little to offer the justices as a meaningful limit on the commerce clause. As Kennedy told him, “If Congress says that the interstate commerce is affected, isn’t, according to your view, that the end of the analysis?” Verrilli said no, but the real answer seemed to be yes. He was presenting a New Deal–era version of the commerce clause like the one Robert Jackson had described to a friend in 1942: “In any case where Congress thinks there is an effect on interstate commerce, the Court will accept that judgment.” But not, clearly, the Roberts Court in 2012.

——

Scalia was partisan, Kennedy imperious, Alito incisive, Ginsburg demanding (and frustrated). When Paul Clement, who served as solicitor general under George W. Bush, rose to challenge the law, Stephen Breyer took him on.

Breyer was not a linear thinker (like Ginsburg, for instance), and he sometimes found himself caught up in his own curlicues of erudition. But no one knew this area of the law better than Breyer. He tried, in his professorial way, to show what a radical step the Court was considering. Chief Justice John Marshall upheld the creation of a national bank in the famous 1819 case of
McCulloch v. Maryland
; in
Wickard
, the Court said the commerce clause allowed the regulation of wheat growing for private consumption; in
Gonzales v. Raich
, the Court, in 2005, said the commerce clause allowed the prohibition on the use of homegrown marijuana.

“I think if we look back into history, we see sometimes Congress can create commerce out of nothing,” Breyer said. “That’s the national bank, which was created out of nothing to create other commerce out of nothing. I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.

“And I look at the person who’s growing marijuana in her house, or I look at the farmer who is growing wheat for home consumption. This seems to have more substantial effects. Is this commerce? Well, it seems to me more commerce than marijuana. I mean, is it, in fact, a regulation? Well, why not? If creating a bank is, why isn’t this?”

Breyer was rambling, as was his wont, but he was making a serious point. The conservatives were pushing the idea that the government could never force anyone to take affirmative steps, or to create anything. But Breyer was pointing out that the Court had upheld many regulations and laws that had far less effect on interstate commerce than the ACA.

“And then you say, ah, but one thing here out of all those things is different, and that is you’re making somebody do something,” Breyer went on. “I say, hey, can’t Congress make people drive faster than 45 miles an hour on a road? Didn’t they make that man growing his own wheat go into the market and buy other wheat for his cows? Didn’t they make Mrs. Raich, if she married somebody who had marijuana in her basement, wouldn’t she have to go and get rid of it? Affirmative action? I mean, where does this distinction come from? It sounds like sometimes you can, and sometimes you can’t.” Breyer had dedicated his life
to the idea that was at the core of the ACA: that government could help solve problems for people. The idea that the Constitution prohibited such attempts was anathema to him.

Suppose “a disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die; can’t the Federal Government say all 40 million get inoculation?” he went on, before finally getting to his point. “So here, we have a group of 40 million, and 57 percent of those people visit emergency care or other care, which we are paying for. And 22 percent of those pay more than $100,000 for that. And Congress says they are in the midst of this big thing. We just want to rationalize this system they are already in.

“So, there, you got the whole argument, and I would like you to tell me—”

And here, in light of the length of Breyer’s question, Scalia could not avoid a wisecrack at his colleague’s expense. “Answer those questions in inverse order,” Scalia said.

“Well, no, it’s one question,” Breyer said, miffed at the interruption. “It’s looking back at that history. The thing I can see is that you say to some people, go buy. Why does that make a difference in terms of the commerce clause?”

Sotomayor tried to help. Unlike Breyer’s, Sotomayor’s concerns tended toward the earthbound and practical. Sometimes, during oral arguments, she would go on tangents involving detailed questions about the facts of cases that would leave her colleagues stupefied, sinking into their chairs. This time, though, she had a simple line of inquiry. States require individuals to buy automobile insurance. “Do you think that if some states decided not to impose an insurance requirement,” Sotomayor asked Clement, “that the federal government would be without power to legislate and require every individual to buy car insurance?”

The heart of the argument against the individual mandate was that it was an extreme departure from previous actions of the federal government. But states routinely required effectively the same thing that the federal government was asking here—for individuals to buy insurance. Was that so outrageous? Clement hedged in his reply, and in any event, the issue drew no traction from the Court’s conservatives. Nothing did. They were locked in. Except, it turned out, for one of them.

——

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.”

THE “EFFECTIVE” ARGUMENT

O
n 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.

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.