The Roberts Court: The Struggle for the Constitution (49 page)

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The time, place, and players were set for an extraordinary and historical debate in late March 2012 over the nature and scope of Congress’s powers under the Constitution. However, as many justices have said over the years, Supreme Court cases are rarely won or lost because of oral arguments. Instead, the most important factor is the legal brief.

Not surprisingly, lawyers often write briefs with certain justices in mind. In hopes of attracting as many votes as possible, they will glean decisions—whether majority, concurring, or dissenting opinions—by the justices for arguments that might bolster their own cases.

The government’s main health care brief clearly hoped to reach three justices in order to get to the five votes needed to win: Scalia, Kennedy, and Roberts. It drew on Scalia’s concurring opinion in the medical marijuana commerce clause case,
Gonzales v. Raich
, in which the justice noted that marijuana grown at home for personal use is “never more than an instant from the interstate market.” The same principle applied to health care, said the government, because “we are all potentially never more than an instant from the ‘point of consumption’ of health care.”
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The brief also tried to show Kennedy that the law was on the constitutional side of the line that he drew in his commerce clause opinions in the gun-free school zone case,
United States v. Lopez
, and the case involving civil commitment of sexually dangerous prisoners,
United States v. Comstock
. The mandate, the government argued, was necessary to achieve the law’s comprehensive insurance market reforms, and was itself an economic regulation of the timing and manner of paying for health insurance, and so its links to interstate commerce were “tangible, direct and strong.”

Also emphasized throughout the brief was a principle that Roberts
had espoused during his confirmation hearings: respect for the democratically accountable branches of government.

Finally, and most importantly, although not widely recognized at the time, Verrilli strengthened in the main brief and the reply brief the government’s argument that the mandate was a constitutional exercise of Congress’s tax power.

Paul Clement’s brief for the state AGs was considered powerful and direct. Throughout, he stressed that the mandate represented an “unprecedented and unbounded” claim of federal power.
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In what could only have been a direct appeal to Kennedy, the brief argued that the mandate was a threat to individual liberty—the concern for individual liberty is the principle animating much of Kennedy’s jurisprudence. And the power to compel an individual to engage in commerce, the brief charged, is “a revolution in the relationship between the central government and the governed.” Kennedy would use almost the identical language in a question to Verrilli during the oral arguments.

Michael Carvin’s trademark hard-charging style was evident in his brief’s arguments against the mandate, which emphasized how the law “commanded,” “compelled,” and “forced” people into interstate commerce. He, too, framed the argument around the threat to individual liberty and challenged the government’s factual and economic justifications for the law as well as its legal ones.
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Outside of the Court, some liberal and conservative special interest groups waged an unsuccessful effort to force the recusal of Kagan and Thomas from the case. Those conservative groups, including some Republican members of Congress, would not accept the Justice Department’s insistence that Justice Kagan, as solicitor general, had never worked on the health care litigation. And the liberal groups argued that Justice Thomas had a conflict of interest, or at least the appearance of one, because of his wife’s lobbying activities against passage of the health care law.
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The two justices never commented on the recusal demands, but
it was clear from their silence when the Court granted review in the health care cases that they were in them to stay.

The demands came during a year in which several justices were criticized by the media and good government organizations for being too close to partisan politics. Scalia was targeted for delivering a lecture on the Constitution to the House Tea Party Caucus. Alito drew fire for attending the conservative
American Spectator
’s annual fund-raising dinner, where he previously had been the keynote speaker. There were questions about Thomas’s relationship with the Texas real estate magnate Harlan Crow, a major supporter of conservative causes. And both Scalia and Thomas were criticized for appearing at separate meetings hosted by Republican mega-donors, the billionaire Koch brothers.
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The recusal demands and ethical questions surrounding Scalia, Thomas, Kagan, and Alito mixed into the hyper-partisan atmosphere choking Congress and the executive branch, and resulted in a political minefield for a Court whose justices’ ideologies were now aligned with the politics of their appointing presidents.

Special interest groups also conducted an unprecedented amicus effort in the health care case. More than 150 friend of the court briefs were filed by medical associations, insurers, conservative and liberal civil rights and social welfare organizations, law professors, health professionals, and others.

Before the health care arguments in March, the justices avoided one potential mine. The Court, in an unsigned opinion, sent the Texas redistricting case back to the federal judge who drafted the interim redistricting plan. It vacated the interim plan because it was not clear that the judge had applied the correct standards in drafting the plan, including giving appropriate consideration to the Texas legislature’s own map.

Concerns never materialized that the Court would use the Texas case to confront the constitutionality of the Voting Rights Act’s provision requiring preclearance of voting changes by states with histories of voting discrimination.

Although the Court’s marble-laden home has a remarkable insulating effect, figuratively and literally, the justices were acutely aware of the politically charged atmosphere surrounding the term, and the health care case in particular.

The weekend before the health care decision was issued, Ruth Bader Ginsburg delivered remarks at the annual convention of a liberal legal advocacy organization, the American Constitution Society. She noted that “No contest since the Court invited new briefs and argument in
Citizens United
has attracted more attention in the press, the academy and the ticket line outside the Supreme Court, a line that formed three days before the oral arguments commenced.”

And another justice confided the day before the health care ruling that he had felt the political tensions surrounding the term more than in prior terms. “I felt it more this term,” said the justice, adding, “I don’t know why. Perhaps it was the many difficult issues [on the docket] and the political atmosphere coming together.”

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On the first day of the health care arguments, Monday, March 26, 2012, the action outside the Court was more energized than the arguments inside. Old-fashioned protests, complete with signs and chants, unfolded in front of the Supreme Court Building, and a long line of hopeful observers snaked around the corner. The Anti-Injunction Act of 1867 was the issue of the day, and it quickly became clear that the justices did not see that act as a bar to their reviewing the constitutionality of the health care law.

When Donald Verrilli stood up to make the government’s argument that the act did not apply, he faced little pushback. Although not evident at the time, the Court’s relatively low-key questioning left Verrilli with extra time to fill, which he seized effectively by laying the groundwork for the government’s argument on Congress’s tax power. Justice Sotomayor provided the opening by asking if there were any collateral consequences of not having health insurance. Verrilli spent considerable
time explaining how the penalty—tax—for not having insurance operated. That explanation, it would be seen later, had a keen impact on the chief justice.

Tuesday, March 27, the second day, was the main event—the constitutionality of the individual mandate. Outside, a near-circuslike atmosphere prevailed: demonstrators, music, even a belly dancer occupied the sidewalk below the building’s plaza. Inside, the lawyers would play to a packed house. More than a dozen members of Congress from both sides of the aisle took seats in the courtroom, as did a number of Obama administration cabinet members, including the attorney general and the secretary of Health and Human Services. Bill McCollum, the former Florida attorney general who had spearheaded the health care lawsuit, had a special seat in the justices’ guest section. The chief justice’s wife, who works as a legal headhunter, had recruited him for the law firm where he then worked, and she gave him her seat since she was out of town that day. McCollum found himself sitting between two of the chief justice’s physicians.

Verrilli was first at the podium and immediately encountered a freakish problem. Slightly hoarse with a frog in his throat, he struggled to begin his argument, took a sip of water, failed to clear his throat, and tried again. Roberts, looking concerned yet unsure what to do, leaned forward as if to say something, but Verrilli found his voice and started again. After that, his argument seemed disjointed and weak. Later, he was harshly criticized as having blown the most important argument of the century.

Various factors led to that criticism. Verrilli, according to a recent study of the arguments, was interrupted 180 times—an average of every twenty-two seconds—during his fifty-six minutes at the podium by questions primarily from the Court’s conservative wing. He was able to speak roughly ten or fewer seconds more than 40 percent of the time before being interrupted. By contrast, his main opponent, Clement, was interrupted thirty-three times in thirty minutes and spoke for one minute or longer before being interrupted. He and Carvin faced far
fewer questions from the conservative justices, even though they were the challengers.
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Verrilli, Clement, and Carvin also have dramatically different styles. The solicitor general is soft-spoken and deliberate. Clement, standing with no papers to aid him, is quick, confident, and at ease with light bantering with the justices. Carvin is aggressive and tenacious. The Court’s conservative justices, frankly, also are better questioners than their colleagues on the left, although that is slowly changing as Kagan and Sotomayor gain experience.

In the end, scholars and others who closely followed the mandate arguments agreed that Verrilli made the points that he needed to make. Working off of Judge Jeffrey Sutton’s opinion in the Sixth Circuit, Verrilli stressed the unique features of the health insurance market. Because everyone would enter the market but there is no control over when, an insurance requirement in advance of the point of sale was justified. It was an application of the commerce clause, not an extension of it. Based on their later questions to Clement, both Roberts and Kennedy understood the government’s argument, if not persuaded by it. Verrilli also reinforced the tax power argument from the previous day.

There was no question that it was a bad day for the government. There also was a surprising partisan overtone to some of the questions by Scalia and Alito. Scalia in particular seemed to be repeating the opponents’ talking points and was the first to raise the broccoli argument against the individual mandate (if the government could force individuals to buy health insurance, it also could require them to buy broccoli). He later also referred to the so-called Cornhusker kickback amendment as if he believed it was still in the law, even though it had been removed two years earlier. And he startled the audience when, after Verrilli explained that we as a society had obligated ourselves to care for the uninsured when they showed up in emergency rooms for care, the justice leaned forward to retort, “Well, don’t obligate yourself to that!”

The third and last day was not a good one either for the government. At least four justices seemed inclined to strike down the entire law if the
mandate was unconstitutional, and the states’ challenge to the Medicaid expansion appeared to make headway with a number of the justices—a remarkable reaction given the fact that the Supreme Court had never found a federal funding condition to be coercive and the federal government was covering the cost of the Medicaid expansion at 100 percent in the first three years and never less than 90 percent permanently.

The arguments ended on Wednesday, March 28, and the justices met the following Friday to vote on the issues.

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The rest of the term might have seemed anti-climactic after the health care arguments, but the justices had other difficult issues to wrestle with and ultimately they did so with a surprising degree of consensus.

They unanimously recognized a “ministerial exception” to the nation’s job-bias laws for religious employers sued for discrimination by employees who act as ministers for their churches. They also agreed that attaching a GPS unit to a vehicle and then using it to monitor a suspect’s movements is a search under the Fourth Amendment. The earlier Texas redistricting decision had been unanimous. The justices also found common ground in two other cases that many expected to divide the Court: defining a fundamental question of what is patentable subject matter, and permitting judicial review of environmental compliance orders under the Clean Water Act.

However, they divided 5–4, in an opinion by Kennedy, that jail officials can conduct strip searches of prisoners to be released into the general jail population without the reasonable suspicion usually required by the Fourth Amendment. Roberts, Scalia, Thomas, and Alito joined Kennedy. And Kennedy joined his liberal colleagues in a 5–4 decision banning life in prison without parole for juvenile murders. As senior justice in the majority, he assigned the opinion to Elena Kagan, her most important opinion since joining the Court.

In one of the term’s most aggressive rulings, Alito led a divided court in
Knox v. Service Employees International Union
. The case asked the justices
if a union was required to send a notice to non-union members before deducting certain fees from their paychecks in a special assessment to challenge two state ballot referenda. The Court, voting 7–2, held that the union failed to give proper notice. That should have been the end of the case; but Alito, in a second ruling for the five conservative justices, overruled a long-standing precedent which had held that the First Amendment required unions to give non-union employees covered by union contracts the opportunity to opt out of special fees. The majority held that the union cannot require non-members to pay unless those members affirmatively opt in: a blow to unions’ ability to raise money.