THE “EFFECTIVE” ARGUMENT
On 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.
Scalia: affirm.
Kennedy: affirm.
Thomas: affirm.
Ginsburg: reverse.
Breyer: reverse.
Alito: affirm.
Sotomayor: reverse.
Kagan: reverse.
Four to four.
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.
Roberts’s vote in the health care case would trump even Citizens United as a symbol of his tenure. Citizens United defined the public image of the Roberts Court in the way that Bush v. Gore, another decision steeped in partisan politics, symbolized the Rehnquist Court. In terms of public perception, the health care case represented the third installment of this legal trilogy—the next occasion when the Court would wade into the political thicket. Unlike Bush v. Gore and Citizens United, the newer case did not deal directly with the business of elections but instead represented something almost as inflammatory: the Republican-dominated Court’s verdict on the central achievement of a Democratic president.
Roberts told his colleagues that, as he had indicated at oral argument, he thought Congress had exceeded its powers under the commerce clause in creating the individual mandate. This position was in accord with Scalia, Kennedy, Thomas, and Alito. It was less clear to his colleagues how the chief felt about the other questions in the case. Most importantly, what did the commerce clause ruling mean for the future of the health care law as a whole? Would just the individual mandate be struck down? Or the whole law? And what of the law’s imposition on the states to expand Medicaid coverage? Was that permissible? Discussions at conference are conducted at a fairly general level. The details are worked out in the opinions. Roberts assigned himself National Federation of Independent Business v. Sebelius. His colleagues would see a draft in about a month, which was normal for a major case.
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Roberts and the other justices couldn’t simply devote themselves to resolving the health care case. They had to keep up with the rest of their calendar, too. On April 25, the last day of oral arguments for the term, the justices heard a challenge to Arizona’s immigration law, which included several measures to limit illegal immigration and punish undocumented people who were already in the state. The measure, known as SB 1070, had received a great deal of criticism for its possible effect on the lives of Hispanics in the state, but the Obama administration challenged the law on narrower grounds—that the state infringed on responsibilities that belonged exclusively to the federal government.
After the Arizona case was argued, Roberts joined Kennedy, Ginsburg, Breyer, and Sotomayor in a compromise verdict. (Kagan did not participate.) The justices found that three provisions of the law, including one that banned undocumented immigrants from seeking work, were preempted by federal law. But the five justices also upheld the most controversial part of SB 1070—the so-called “show me your papers” provision, which expanded the ability of state law enforcement officers to inquire about individuals’ immigration status.
Scalia disagreed—vehemently. His passions had shifted in recent years from the scholarly to the political. Increasingly, his preoccupations, with topics like illegal immigration, mirrored those of Fox News. (Barack Obama himself was another Scalia fixation.) All justices have a political ideology as well as a legal philosophy—that’s a big reason presidents choose them in the first place—but Scalia was letting the two merge in an ever more public way. Implicitly, if not explicitly, Scalia expected his colleagues, including the chief justice, to share his obsessions.
At the same time, Scalia was making it clear that he thought Roberts’s opinion in the health care case should strike down the entire law, not just the individual mandate. Based on the oral argument, this result was obviously a possibility, but the implications of such a resolution weighed on Roberts. The law had dozens of provisions, many of them uncontroversial, many also critical to continued operations of both the federal government and all fifty states. (Pursuant to the law, for example, many millions of federal dollars had already been transferred to the states to pay for the existing Medicaid system; that whole system would have been thrown into chaos if the law had been completely struck down.)
Roberts was a conservative and a lifelong partisan Republican. The chief justice had no particular affection for Obama. Roberts had dual goals for his tenure as chief justice—to push his own ideological agenda but also to preserve the Court’s place as a respected final arbiter of the nation’s disputes. Scalia’s vision of the justices as gladiators against the president unnerved Roberts. A complete nullification of the health care law on the eve of a presidential election would put the Court at the center of the campaign, especially if the majority in the case consisted only of the five Republican appointees. Democrats, and perhaps Obama himself, would crusade against the Court, eroding its moral if not its legal authority. As chief justice, Roberts felt obligated to protect the institutional interests of the Court, not just his own philosophical agenda.
Gradually, then with more urgency, Roberts began looking for a way out.
Don Verrilli had given it to him. Verrilli always liked the taxing power argument. No one doubted that Congress had the constitutional power to levy taxes, even if any individual decision to do so could be politically fraught. When the first cases against the health care law had been filed, in 2010, lawyers in the White House had been squeamish about using the taxing power argument. Obama had promised that the ACA would not represent a tax increase and, more generally, politicians never want to be associated with taxes. But as judges began to take the commerce clause challenge more seriously, the politicos deferred to the lawyers and allowed them to use the taxing power argument.
Verrilli was determined to raise the issue during oral argument. Toward the end of his defense of the individual mandate, Verrilli tried to pivot to the subject off a question from Roberts, saying, “Mr. Chief Justice, let me answer that, and then if I may, I’d like to move to the tax power argument.”
Scalia cut him off with another wisecrack, which drew laughter. Roberts, Scalia, and Alito jumped in with questions, until finally Sotomayor came to Verrilli’s rescue, saying, “General, could you turn to the tax clause?”
“Yes,” Verrilli said.
Soon enough, though, Scalia spoke up and tried to embarrass Obama. “The president said it wasn’t a tax, didn’t he?” Scalia asked Verrilli. “Is it a tax or not a tax? The president didn’t think it was.”
Verrilli was ready for this: “The president said it wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance. I don’t think it’s fair to infer from that anything about whether that is an exercise of the tax power or not.”
Then came an exchange that passed quickly but turned out to be of considerable significance. “Why didn’t Congress call it a tax, then?” Roberts asked.
“Well—” Verrilli began.
“You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?”
Verrilli answered: “They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objectives. But it is in the Internal Revenue Code, it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say—”
The word “effective” amused the chief justice. “Well, that’s the reason,” Roberts said with a big smile. “They thought it might be more ‘effective’ if they called it a penalty.” Verrilli meant “effective” in the sense that the fee would compel people to buy insurance. But Roberts, a Washington veteran, knew the real reason Obama and the Democrats in Congress didn’t use the word “tax”—because it was more politically “effective” to avoid it.
In any event, the tax argument stayed with the chief justice.
In April and May, it started to become apparent to the other justices that Roberts was going “wobbly” in his determination to overturn the law. Votes are never final until the decisions are announced in open court. Votes at conference are by definition tentative. It is well within the bounds of acceptable behavior for justices to change their minds once opinions begin circulating. Still, that rarely happens. But now, it appeared it was happening with Roberts—in the most important case of his tenure as chief justice.
What happened next was unprecedented in recent Supreme Court history. For pending cases, the Court had a nearly perfect record for avoiding leaks. But conservatives on the Court—especially law clerks—were so outraged that Roberts might betray them that they started to talk.
The chatter became so pervasive that, in short order, prominent conservatives decided to challenge Roberts to stick to his guns in the health care case. On May 22, an editorial in the Wall Street Journal, referring to recent remarks by Senator Patrick Leahy, said, “You can tell the Supreme Court is getting closer to its historic ObamaCare ruling because the left is making one last attempt to intimidate the Justices. The latest effort includes taunting Chief Justice John Roberts that if the Court overturns any of the law, he’ll forever be defined as a partisan ‘activist.’ ” That same day, Kathleen Parker, a conservative columnist in the Washington Post, wrote, “Novelist John Grisham could hardly spin a more provocative fiction: The president and his surrogates mount an aggressive campaign to intimidate the chief justice of the United States, implying ruin and ridicule should he fail to vote in a pivotal case according to the ruling political party’s wishes. If only it were fiction.”
George Will, the dean of conservative columnists, had heard from a law student who had heard from a law clerk that Roberts was vacillating in the case. On May 25, Will wrote that various progressives were “waging an embarrassingly obvious campaign, hoping [Roberts] will buckle beneath the pressure of their disapproval and declare Obamacare constitutional.” Will concluded, “Such clumsy attempts to bend the chief justice are apt to reveal his spine of steel.”
The following week, the rumors broke into the open, if a panel discussion at a Princeton reunion counts as the open. There, on June 2, Ramesh Ponnuru ’95, a senior editor at National Review, said:
My own sort of educated guess, based on people I talk to at the Supreme Court, is that—Well, as I’m sure people know, there’s an initial vote the same week, on the Friday of the oral arguments. And my understanding is that there was a 5–4 vote to strike down the mandate and maybe some related provisions but not the entire act. Since then, interestingly, there seem to have been some second thoughts. Not on the part of Justice Kennedy, but on the part of Chief Justice Roberts, who seems to be going a little bit wobbly. So right now, I would say, [the outcome of the case] is a little bit up in the air.
Barton Gellman, a writer for Time who was present, tweeted about Ponnuru’s remarks. (Ryan Lizza, the Washington correspondent of The New Yorker, retweeted Gellman’s tweet, as did others.) It may have been just gossip, but it turned out to be remarkably accurate gossip. The story was getting out.
The four conservatives had overplayed their hand with the chief justice. By demanding that Roberts kill off the entire health care law, they prompted him to look for some kind of middle ground. The liberals, in contrast, welcomed any overture from the chief justice. Like the four conservatives, Roberts regarded the expansion of Medicaid as a violation of states’ rights. Even though both Breyer and Kagan had vociferously defended the Medicaid expansion during oral argument, they agreed to join Roberts in striking that portion down—giving the chief valuable political cover on the issue. Roberts now had seven votes on the Medicaid issue.
In early June, Roberts circulated an opinion that declared that Congress had violated the commerce clause by imposing the individual mandate but that upheld the mandate as an exercise of the taxing power. The chief justice worked hard to try to bring Kennedy to his side. He turned one of Kennedy’s questions in oral argument into part of his opinion, practically verbatim. Kennedy had told Verrilli: “Here the government is saying that the federal government has a duty to tell the individual citizen that it must act … and that changes the relationship of the federal government to the individual in a very fundamental way.” Roberts wrote: “Accepting the government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the federal government.” Neither man budged.
One clue about the resolution of the health care case appeared in plain view—and still everyone missed it. On June 15, Ginsburg spoke to the national convention of the American Constitution Society, the liberal counterpart to the Federalist Society. For the most part, she limited herself to an anodyne review of the cases decided by the Court so far, but she also warned that there were sharp disagreements ahead. In sum, Ginsburg said, the year “has been more than usually taxing.”
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Scalia was enraged at the chief. On Monday, June 25, when the Arizona immigration case was announced, Scalia’s dissenting opinion marked his transition from conservative intellectual to right-wing crank. Speaking from the bench, he ranged over contemporary controversies, whether or not they had any relevance to the Arizona case. He noted, for example, that Obama had recently used an executive order to accomplish some of the goals of the DREAM Act and exempt certain young people from deportation. (This decision came well after the Arizona case was argued and was legally irrelevant to the issue at hand.) “The president said at a news conference that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the Immigration Act,” Scalia said. “Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind.” Scalia did not explain how declining to deport these individuals boggled his mind.
“The issue is a stark one,” he went on. “Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws? A good way of answering that question is to ask: Would the states conceivably have entered into the union if the Constitution itself contained the Court’s holding?” If this had been the original view of the framers of the Constitution, “the delegates to the Grand Convention would have rushed to the exits from Independence Hall.” In other words, according to Scalia, if Arizona had known what was coming from his colleagues in 2012, the state never would have joined the Union. No other state would have either. The Arizona ruling, in Scalia’s telling, would have destroyed the country even before it was born.
Scalia was indeed unhappy with the immigration decision, but the splenetic excess of his Arizona opinion owed far more to his failure (as yet unknown to the public) in the health care case.
The last few weeks of a Supreme Court term are always tense and confusing. Only the most controversial cases remain. Drafts of opinions fly between chambers. Memos comment on the opinions, and some propose alternatives, which in turn lead to more correspondence. The goal among the justices is always the same: to receive memos from colleagues that say, in the peculiar diction of the Court, “Please join me.” That’s how justices sign on to one another’s opinions.
The manic intensity of June 2012 surpassed any year in recent memory. The outcome in National Federation of Independent Business v. Sebelius remained in doubt long after cases were usually settled. Roberts wrote a draft opinion. Ginsburg wrote a draft dissent. As Roberts hedged, Scalia, Kennedy, Thomas, and Alito adopted some of the chief’s arguments as their own—in part as a possible dissent, in part as a lure to Roberts to make a new majority. (Dissenting opinions are invariably written by a single justice; other justices may then sign on. It’s rare, if not unprecedented, for four justices to affix their names as coauthors to a dissent.) With all the changes, the cross-references among the various opinions became confused. The Scalia & Co. opinion referred to the Ginsburg opinion as “the dissent,” when Ginsburg wound up not dissenting, except on the matter of the Medicaid provision. At one point, of course, it did look like the Ginsburg opinion would be “the dissent.” Likewise, the Scalia & Co. opinion for the most part does not even address Roberts’s opinion for the Court, which is unusual in a dissent.
Still, by the last week in June, the ragged passage had reached an end. By a vote of 5–4, the Court would uphold the heart of the Affordable Care Act. All that was left was to tell the world.
At ten o’clock on Thursday, June 28, the justices appeared as they always do. The three red curtains parted, pulled open by unseen hands, and the nine materialized simultaneously in groups of three: Roberts, Scalia, and Kennedy in the center; Sotomayor, Breyer, and Thomas on one side; Ginsburg, Alito, and Kagan on the other. On this day, they looked as they had never appeared before: haggard, exhausted, spent. Sotomayor was bent with fatigue; Alito needed a haircut; Kagan seemed thin and drawn. (This was partly intentional; she had lost thirty pounds in a year.) Scalia appeared as he had seven years earlier, when he stood by William Rehnquist’s casket: bereft, heartbroken, and angry, too.
Even those tortured visages could not prepare anyone for the sound of John Roberts’s voice. The brisk midwestern confidence was gone, replaced by a mournful near whisper. This was an unpleasant duty for him. It took a few minutes to find out why. He began with the commerce clause, and his conclusions were those telegraphed by the oral argument. The individual mandate, Roberts wrote, “does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things.” He went on, “To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.” The mandate, and the law, appeared at that moment as good as dead.
“That is not the end of the matter,” the chief justice went on. “Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to ‘lay and collect Taxes.’ ” Slowly, as members of the audience looked at one another in astonishment, it became clear that Roberts was endorsing the view that the mandate was a tax. “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” he wrote. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
There was no grand peroration at the conclusion of Roberts’s remarks—more like an apology. “But the Court does not express any opinion on the wisdom of the Affordable Care Act,” Roberts said. “Under the Constitution, that judgment is reserved to the people.”
As the senior justice in the minority, Scalia had the right to read the dissenting opinion from the bench. But he was either too tired, too angry, or too overwrought to take on that duty, and he passed it off to Kennedy. “In our view,” he said simply, “the act before us is invalid in its entirety.”
Ginsburg went last. The statement she read in court marked a notable contrast to the words in her printed opinion. She had written at a time when it looked like the Court might strike down the individual mandate, or even the full statute. The opinion is caustic, almost bitter. But by the time the Court’s decision was announced, Ginsburg realized, of course, that she had won. Her criticism of Roberts was, accordingly, mild.
More than any other justice, Ginsburg seemed obsessed with what she called “the broccoli horrible,” and she made sure to take on that argument. “Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so,” Ginsburg wrote. “And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.” (The word “broccoli” appeared twelve times in the course of all the opinions.)
Ginsburg’s statement in court included an observation that appeared nowhere in her written opinion but served as a fitting epitaph to this epic case. “In the end,” she said, “the Affordable Care Act survives largely unscathed.”