The Roberts Court: The Struggle for the Constitution (48 page)

“I don’t think the Court is going to be influenced one bit by the politics or the election. They’ll feel free to accept valid constitutional arguments, particularly because the law is so unpopular with people. I just think they’re going to call it the way they see it.”

—Randy Barnett, counsel to the National Federation of Independent Business, November 2011

E
ach Supreme Court term is a story in itself, and as each story unfolds, an unpredictable twist or turn almost always surprises the conventional view of the nation’s highest court.

Witness the stunning trio of authors who in 1992 reaffirmed—saved—the landmark abortion decision,
Roe v. Wade
, while also weakening it. The unprecedented intervention in, and decisive end to, the 2000 presidential election. The path-breaking gay rights ruling in
Lawrence v. Texas
. And the emotion-laden battle among the justices over the meaning of
Brown v. Board of Education
in the Seattle-Louisville public school decision.

Despite the nearly inevitable twist or turn, the challengers to the fledgling health care law had reason to be optimistic about their chances as they filed their appeals with the Roberts Court throughout the fall of 2011. They had taken an off-the-wall constitutional argument about the commerce clause containing an activity-inactivity distinction and had persuaded veteran appellate judges to consider it seriously, and in some cases, to accept it. With that argument, they had dictated the terms of
the legal fight with their government opponents as well as the debate over the law in the media and with the public. And they had a conservative majority on the Roberts Court, not always solidly conservative, but fairly reliably so.

The law’s supporters also were optimistic. In the 230-year history of the commerce clause, the Supreme Court had never found an activity-inactivity dichotomy to limit Congress’s authority under the clause. The Court also had never struck down as unconstitutionally coercive a federally imposed condition on the states for receiving federal funds, the argument being used by the state attorneys general to attack the health care law’s expansion of Medicaid coverage for the nation’s poor and disabled. And fairly recent commerce clause–related rulings by Scalia and Roberts offered hope that those justices might be more open to the government’s arguments.

However, just as everyone knew who had followed the Roberts Court since Sandra Day O’Connor’s departure in 2006, both sides realized there was one, probably determinative, wild card: Justice Anthony Kennedy. They could not underestimate how pivotal Kennedy’s vote might be. He had been the key to 5–4 victories in the school race cases, the death penalty, abortion, gun rights, and terrorism-related cases, among others, since the beginning of the Roberts Court.

For its part, the Roberts Court was facing the most politically charged term since its beginning in 2005. In August 2011, Arizona’s governor, Jan Brewer, asked the justices to decide whether federal immigration law preempted certain parts of her state’s tough anti-immigration law. A lower federal court had temporarily blocked the law from taking effect after the Obama Justice Department filed suit. The political and legal stakes were high. Immigration already was a front-burner issue in the coming presidential election, and a number of states and localities had enacted laws and ordinances modeled after the Arizona statute.

In September, the solicitor general of the United States lodged with the Court the government’s appeal of its defeat in the health care challenge brought by the Republican state attorneys general, whose numbers
had grown to twenty-six. The state AGs would file their own petition stemming from their loss in Florida on the Medicaid issue. And the National Federation of Independent Business (NFIB), whose legal team now included Randy Barnett, one of the first to articulate the activity-inactivity argument, had split off from the states’ challenge to make its own arguments in the Supreme Court.

The state of Texas brought a redistricting appeal to the justices in November. Redistricting—the drawing of congressional district lines after the census—is the most contested task undertaken by state legislatures. Because of its history of voting discrimination, Texas was required to get approval—preclearance—of its redistricting plan from a federal court in Washington, D.C., or from the Justice Department. Texas went to the federal court. When it became clear that the court would not rule before the approaching 2012 primary election in Texas, the D.C. court asked the federal court in Texas to draft an interim plan, and it did. Texas then asked the Supreme Court whether a federal court had authority to issue its own interim redistricting plan when the state’s plan was pending approval. The Justice Department and certain groups had argued that the Texas plan deliberately sought to reduce the influence of Hispanic votes and to strengthen state Republican candidates’ chances.

The Texas, Arizona, and Florida challenges were all being handled by one lawyer: former Bush solicitor general Paul Clement. And all three had the potential to sharply divide the justices.

The new term also would see the return of the
Citizens United
campaign finance decision, which eliminated restrictions on independent expenditures by corporations and unions. The state of Montana and its supreme court said
Citizens United
did not apply to the state’s century-old ban on corporate independent spending in that state’s elections. The man who brought
Citizens United
to the Supreme Court—James Bopp Jr.—was now representing the corporations asking the justices to overrule the Montana Supreme Court.

Immigration, redistricting, health care, and campaign finance were
not, like abortion, gay marriage, and affirmative action, the kind of issues that aroused heated passions at the dinner table or water cooler. They were structural issues, raising fundamental questions about the roles and relationships among three branches of the national government, as well as between the national government and state governments. On a broader, non-legal plain, they also raised questions about the type of nation and government its citizens wanted.

In the U.S. Supreme Court, however, the immediate focus is on the legal. The Senate had confirmed a new solicitor general, Donald Verrilli Jr. Before joining the Obama administration, Verrilli was head of the appellate and Supreme Court practice at the national law firm of Jenner & Block. Tall and thin, with salt-and-pepper hair and bushy mustache, Verrilli is widely liked and respected by his colleagues across the ideological spectrum.

No one doubted that the justices would agree to hear the health care cases. A federal appellate court in the state attorneys general challenge had struck down a law enacted by Congress and the solicitor general was seeking Supreme Court review—one of the primary grounds for granting review. Though the opposition had sought it from the beginning, the Roberts Court was not acting aggressively or reaching out for the case, as it did in the school race cases, the Second Amendment challenge, and
Citizens United
. Boldness and aggressiveness would not be at the front end this time, but at the back end, and in a most surprising way.

On November 14, the Court granted review to the case that experts had predicted from the beginning would be the ultimate vehicle for determining the health care law’s constitutionality. The case, initially brought by the Republican attorneys general, was now three cases on the justices’ docket because the government, the state AGs, and the National Federation of Independent Business had each sought review of key issues addressed by the lower appellate court.

The justices took from the three cases four questions to decide:

First, did the Court even have jurisdiction to review the health care law because of the Anti-Injunction Act’s bar against review of pre-enforcement tax challenges?

Second, was the individual mandate a constitutional exercise of Congress’s powers under Article I of the Constitution?

Third, if the mandate were unconstitutional, could it be severed from the law or must the entire law be struck down?

Fourth, did the Medicaid expansion unconstitutionally coerce the states into participating because of the threat that they would lose their federal Medicaid funds if they did not participate in the federal-state program?

The Court subsequently scheduled six hours of argument over three days—not an unprecedented amount of time, but rarely experienced in modern times.

In the Justice Department, many hands had been in the health care brew since the litigation began. Now that the case was in the Supreme Court, Solicitor General Verrilli worked with a core group that included Associate Deputy Attorney General Rob Weiner, who had been overseeing the litigation for more than a year; acting Assistant Attorney General Stuart Delery of the civil division; Ira Gershengorn, who had argued for the government in the district courts; Chad Golder, a young department attorney; and three veterans in Verrilli’s own office: senior career Deputy Solicitor General Ed Kneedler and Assistants to the Solicitor General Leondra Krueger, who would shoulder work on the Medicaid and severability issues, and Joseph Palmore. Verrilli would turn to Kneedler to make the government’s argument on severability of the individual mandate if it were struck down. Verrilli himself would make the government’s arguments on the Anti-Injunction Act issue, the individual mandate, and the Medicaid expansion.

Although these lawyers were confident that the government would win, they thought the case was harder than some people inside and outside of the government thought, and consequently, they had no illusions
that winning would be easy. What those seasoned lawyers realized was that although there was a body of case law that stood for certain principles that should favor the government, there was no single controlling precedent for the health care case. That meant that at the end of the day, the justices would have room to make a judgment.
¹

Even before making their arguments to the Supreme Court, Verrilli’s team had to decide again what to do about that old Anti-Injunction Act. The federal appellate panel in the Virginia health care lawsuit had resurrected it to bar that lawsuit even though the government had abandoned the argument. The lawyers knew that telling the justices that the Anti-Injunction Act did not apply because the law imposed a penalty, not a tax, for failing to have health insurance weakened one of their central arguments—that the mandate was constitutional under Congress’s taxing power. However, they risked damaging their credibility with the Court by switching positions again and so chose to make the best of their arguments on both issues.

In the normal course of their work, solicitors general do not have the time to focus on one case for an extended period or even become heavily involved in the brief writing. Even if they prefer to be hands-on, the workload is too great and court deadlines are always pressing. But the health care case was different. The stakes were enormous; the issues were complex. Verrilli immersed himself in the case. He read every government brief and line-edited them, and consulted as well with experts outside the department on a regular basis.

His opponent, former Solicitor General Paul Clement, had been more of a hands-on solicitor general, said a former colleague from that office. Since leaving the solicitor general’s office in June 2008, Clement, a former clerk to Justice Scalia and conservative D.C. Circuit judge Laurence Silberman, had become the go-to lawyer for conservative legal causes. A native of Wisconsin and a graduate of Harvard Law School, he had argued more than sixty cases in the Supreme Court, including the Seattle-Louisville school race cases and the Second Amendment
case,
McDonald v. City of Chicago
. With a quick wit and confident argument style, Clement enjoyed an easy rapport with the justices during arguments. His mind often seemed to be racing ahead of their questions and he was never rattled or at a loss for words. He was now working at a small, thirteen-lawyer firm, and treated the case in small-firm style, according to his associate Erin Murphy. “There wasn’t any war room or anything like that,” she said in an interview with
The National Law Journal
. “Paul is very self-sufficient.” Murphy, a former law clerk to Chief Justice Roberts, wrote first drafts of all the health care briefs, but the final products were Clement’s work.
²
She would be Clement’s second chair at the argument. Clement planned to argue for the state AGs on the individual mandate, severability, and Medicaid.

Michael Carvin, representing the National Federation of Independent Business, had big firm resources at Jones Day, but his closest team member was partner Gregory Katsas. The two men coordinated efforts with Clement. “Obviously the states have their interests,” said Carvin shortly before the arguments in the case. “We generally worked through Paul and we understand he has a number of clients. Since we’re both moving in the same direction in terms of a goal, it hasn’t presented any serious issues.”
³

Katsas was the designated hitter on the Anti-Injunction Act, while Carvin was to share argument time with Clement on the individual mandate.

The Court itself added two additional lawyers to the argument mix. Because none of the parties argued for the Anti-Injunction Act to apply, the justices appointed a veteran appellate lawyer with no connection to the case—Robert Long of D.C.’s Covington & Burling—to make that argument. On the severability question, Clement and Carvin wanted the entire law to fall if the mandate were found unconstitutional. The government, however, said the mandate was crucial to provisions guaranteeing coverage of preexisting conditions and prohibiting premium increases for people with those conditions. If the mandate was struck, it should be severed along with those two provisions, according to the government.
The Court wanted to hear an argument that only the mandate should be severed from the law and appointed another veteran Supreme Court lawyer, H. Bartow Farr of D.C.’s Farr & Taranto, to make that case.