BROCCOLI
For all the grandeur of the Supreme Court’s façade, the courtroom itself has a kind of intimacy. The lawyer’s lectern is less than ten feet in front of the chief justice; the press seats begin about the same distance from Sotomayor, the justice to Roberts’s extreme right; the justices’ guests sit about as close to Kagan, who is on the opposite side. When the courtroom is completely full (which it rarely is), there are only about five hundred people inside and their collective presence gives the room an unmistakable barometric instability. The place buzzes. The justices notice.
In major cases, the justices are like themselves, only more so. The tension, the adrenaline, the stakes—all serve to exaggerate the quirks of their personalities. Court convened on Monday, March 26, 2012, for the first of three days of arguments in the health care case—the most important any of the justices had heard. Health insurance for thirty million people, to say nothing of the political future of the President of the United States, was riding on the outcome. Five justices remained from the Court that decided Bush v. Gore, but by the time that case was argued, on Monday, December 11, 2000, the Court had already voted to issue a stay to stop the recounts in Florida. The result of the argument that followed was largely a foregone conclusion. Not so in health care. According to Court protocol, the justices do not discuss cases with one another before they are argued. So no one—including the justices—knew how this one was going to come out.
First, though, there was an overture. Roberts had divided the argument by subject, and the first one was the most obscure. When the initial cases against the ACA were filed, the government argued that the suits were barred by a little-known 1867 law called the Anti-Injunction Act. In short, the law bars lawsuits challenging the legality of taxes before the taxes are actually due. In those first cases, the government asserted that the fee that individuals had to pay for failing to comply with the individual mandate—that is, for refusing to buy health insurance—was a tax. The lawsuits, the government contended, could therefore not proceed until the taxes were actually imposed, in 2015. But Katyal, when he was controlling the case as acting solicitor general, switched the government’s position. He said for purposes of the Anti-Injunction Act, the law was not a tax but rather a penalty, and thus the Court could now hear the challenge to its constitutionality. Verrilli, the new solicitor general, stuck with that position, which in turn created a new complication.
At the Court on Monday, Verrilli was claiming that the ACA was not a tax but a penalty. But on Tuesday, when the Court would weigh the constitutionality of the individual mandate itself, Verrilli would argue that the law was a tax. Like Katyal, Verrilli had devoted most of his energy (and most of the space in his briefs) to the claim that the ACA was a legal exercise of Congress’s power under the commerce clause. But he also asserted that the law was separately justified under a different provision of Article I: “The Congress shall have Power To lay and collect Taxes.”
Typically, it was Alito, the most skillful questioner, who exposed the apparent contradiction in the government’s position. “Today you are arguing that the penalty is not a tax,” Alito told Verrilli on Monday. “Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”
Not exactly, Verrilli said, but he still had a response. “Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn’t have a dispositive effect on that analysis,” he said. “Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.”
Not for the last time in the case, the dispute seemed like a matter of semantics. A tax or a penalty? A tax for one purpose but not for another? A tax at an early stage of the litigation but not at a later one? Each argument made a kind of sense (at least to a lawyer), but there was something dispiriting about the fact that the fate of such an important piece of legislation turned on such ephemeral concepts. In a brief exchange on Monday, little noticed at the time, Roberts tried to pierce some of the artificiality.
“The whole point of the suit is to prevent the collection of penalties,” he told Gregory Katsas, one of the lawyers challenging the law.
“Of taxes, Mr. Chief Justice,” Katsas said.
“Well, prevent the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense. It’s a command. A mandate is a command. Now, if there is nothing behind the command, it’s sort of, well, what happens if you don’t follow the mandate? And if the answer is nothing, it seems very artificial to separate the punishment from the crime,” Roberts said, adding a little later, “Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing?” The chief justice was suggesting that a tax and a penalty were effectively the same thing.
Still, in the course of the argument on Monday, the justices seemed more or less aligned, appearing to believe that the Anti-Injunction Act did not prevent them from reaching the merits of the case. They would decide whether the ACA was constitutional—and the key argument would take place the following morning.
“Mr. Chief Justice, and may it please the Court,” Verrilli began, “the Affordable Care Act addresses a fundamental and enduring problem in our health care system and our economy. Insurance has become the predominant means of paying for health care in this country.” He paused and said again, “Insurance has become the predominant means of paying for health care in this country. For most Americans, for more than 80 percent of Americans, the insurance system does provide effective access. Excuse me.” Verrilli paused to take a drink of water, which went down the wrong pipe. Briefly, he lost his train of thought. And just then the assault began.*
Scalia: “Why aren’t those problems that the federal government can address directly?”
Kennedy: “Can you create commerce in order to regulate it?”
Scalia: “If I’m in any market at all, my failure to purchase something in that market subjects me to regulation?”
Verrilli reeled. Several times, he tried to make the point that the health care market was unique, because, as he said, “virtually everybody is either in that market or will be in that market, and the distinguishing feature of that is that people cannot generally control when they enter that market or what they need when they enter that market.”
Roberts: “Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don’t know when you’re going to need it; you’re not sure that you will. But the same is true for health care. You don’t know if you’re going to need a heart transplant or if you ever will. So, there’s a market there. To some extent, we all participate in it.
“So,” Roberts went on, “can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?”
The argument was less than ten minutes old and Verrilli had already been hit with a torrent of hostility from the Court’s conservatives. In the weeks leading up to the argument, the conventional wisdom had been that the Court would probably uphold the ACA as a valid exercise of Congress’s power under the commerce clause. After all, such respected conservatives as Sutton, on the Sixth Circuit, and Laurence Silberman, on the D.C. Circuit, had just done so. But it was quickly obvious how wrong that consensus had been. The onslaught even shocked the four liberal justices, who were themselves frozen in silence.
Alito joined in next. “Do you think there is a market for burial services?” he asked.
“Yes, Justice Alito, I think there is,” Verrilli answered.
“All right,” Alito went on. “Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said: ‘You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else.’ Isn’t that a very artificial way of talking about what somebody is doing?”
“No—” Verrilli began, but Alito cut him off. “And if that’s true, why isn’t it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services?”
As usual in Supreme Court, the answers mattered less than the questions. In a flash, the four speaking conservatives had signaled one another that they were united in the commerce clause argument against the individual mandate. (Thomas observed his customary silence, but his long-established position on the clause made him a sure vote to overturn the law.)
Kennedy then asked an extraordinary question, one that reflected his judge-centered, almost messianic, approach to the law. “Could you help me with this,” he said to Verrilli. “Assume for the moment that [the individual mandate] is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?”
Kennedy had seventy-five years of constitutional law precisely backwards. During that time, the justices had repeatedly acknowledged that laws passed by Congress were presumed to be constitutional, especially in the economic sphere. It was supposed to be a rare thing indeed for unelected judges to overturn the will of the democratically elected branches of government. But here Kennedy was saying that the legislature had a “heavy burden” of proving that its health care law was constitutional. According to decades of settled law, it was the Court, including Kennedy, that had the heavy burden of justification for interfering in the political process. But Kennedy did not think that way. More than any other justice, he had the confidence, or arrogance, to trump the other branches of government. Sometimes, as when he struck down laws that discriminated against gay people, Kennedy’s thirst for power pleased the left; more often, as with Citizens United, Kennedy pleased the right. “Judicial modesty,” in Roberts’s famous phrase, was never for Anthony Kennedy.
As usual, though, it was Scalia who called the most attention to himself during the argument. Two weeks earlier, he had turned seventy-six, and as with many other people, age had coarsened his rough edges. His belligerence had taken on a nastier edge, and his frame of reference became ever more political, less judicial. Even more than Kennedy, Scalia had a palpable contempt for Congress; he didn’t even pretend that the Court owed some deference to the people’s representatives. At one point, Scalia said, “If we struck down nothing in this legislation but the—what’s it called, the ‘Cornhusker Kickback’—OK, we find that to violate the constitutional proscription of venality, OK?” Scalia said, and the audience laughed. Scalia went on: “When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker Kickback is bad.”
The level of distortion in this riff by Scalia was extraordinary. In late 2009, congressional leaders did sweeten the bill with several provisions designed to appeal to Nebraska’s Ben Nelson; these became known as the Cornhusker Kickback. But after the changes generated bad publicity, congressional leaders removed it completely from the bill. There was no Cornhusker Kickback in the final version of the legislation, so the premise of Scalia’s question was false. There is also no such thing as a “constitutional proscription of venality”; that was just another cheap shot at Congress. Scalia was merely reciting conservative talking points, instead of sticking to the facts of the case.
Scalia raised another issue that had a rich history in the right-wing popular culture. “Everybody has to buy food sooner or later,” he said, “so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.” In op-ed pieces, blog posts, Internet videos, even Judge Vinson’s opinion in Florida, the broccoli example was cited as the reductio ad absurdum of the Obama proposal. (Katyal had answered a broccoli question in his argument in the Sixth Circuit.) Given its provenance in the conservative political world, it was not surprising that Scalia was the justice who raised broccoli in front of his colleagues.
Verrilli stumbled in response: “No, that’s quite different. That’s quite different. The food market, while it shares that trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don’t know before you go in what you need, and it is not a market in which, if you go in and seek to obtain a product or service, you will get it even if you can’t pay for it.” (Verrilli failed to note, as Katyal had observed, that Congress had made a specific finding that everyone’s health care premiums rose because of the cost of treating uninsured people; there was no finding, nor could there be one, that food costs rose because some people refused to eat broccoli.)
At this point, finally, the liberals on the Court broke their stunned silence and came to the defense of Verrilli and the health care law. Ginsburg was plainly irritated at Verrilli’s halting performance and tried to take over the defense of the law. At seventy-nine, she had limited patience, inside and outside the courtroom. (Ginsburg was known for exiling law clerks who disappointed her, even while she still nominally employed them.) If Verrilli couldn’t make his case, she would make it for him.
“Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money,” Ginsburg said. “And the tangible result of it is, we were told there was one brief that Maryland hospital care bills seven percent more because of these uncompensated costs, that families pay a thousand dollars more than they would if there were no uncompensated costs. I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product.” Verrilli humbly assented.
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.”
* Immediately after the argument, no one was more critical of Verrilli’s performance, or more wrong about its impact on the justices, than I was.