As the new Court term was about to open in the fall of 2011, Antonin Scalia renewed his call for lowering what Thomas Jefferson and James Madison called the “high wall of separation” between church and state. Duquesne Law School dean Ken Gormley had invited Scalia to be the keynote speaker for the school’s centennial celebration in September, and to speak on what it meant to be a Catholic law school. This gave him a chance to revisit the theme on which he had spoken four years earlier when he discussed the role of Catholicism in judging.
Appearing before a packed arena at the A. J. Palumbo Center, Scalia began by restating his message from Villanova Law School in 2007 disavowing that being a Catholic had affected his view of the law or his application of it as a justice. In arguing at Duquesne that “there is no such thing as Catholic law,” Scalia said there might be “certain proposals [that] are contrary to what we call the Catholic point of view and others are affirmative of it.”1 For him, a Catholic law school could play a role in rectifying that condition: “One would expect its faculty and students and its graduates, to be of assistance in formulating legislative proposals that further the Catholic moral view, and opposing those that impede it. Not because that is part of their assignment, but because if it is a genuinely Catholic place, one would expect a higher proportion of its faculty, and student body to be interested in that enterprise, and to be encouraged in it, as would be the case in an American institution.” Scalia was particularly impressed with what he viewed as the moral environment in which law could be learned at a Catholic institution. “It is possible, I would think, to have a law school that possesses a discernibly Catholic environment, by which I mean a religious faith and living the life and dedication which is in accordance with that faith are a part of the atmosphere of that place. This has nothing to do with making these students better lawyers, but everything to do with making them better men and women. Moral formation is a respectable goal for any educational institution, even a law school. But it is at the center of the law for a genuinely religious institution.” What he sought was not the kind of “intelligent, well-educated society that gave birth to Naziism,” but rather a “Catholic institution, even a law school, [established and operated] to create an atmosphere that enables moral formation, not just knowledge but moral formation.” Returning to his theme from the Villanova Law School speech, though, he cautioned: “A university run by Catholics no more deserves to be called a Catholic university, than a supermarket owned by Catholics deserves to be called a Catholic supermarket. . . . The Catholic law school should be a place where it is clear though perhaps not spoken that the here and now is less important, when all is said and done, than the here-after. It should be a place that takes the law seriously, but not so seriously as to forget what the law is.”
Six months later, Scalia continued his religion theme when he appeared as the keynote speaker at the annual “Living the Catholic Faith Conference” in Denver, Colorado, a two-day event of 3,500 devout Catholics. Scalia began his remarks before a standing room crowd by reprising portions of his basic “Christians as cretins” speech that he had used in his “being fools for Christ’s sake” speech in Mississippi in 1996.2 Scalia, as he had done before, proposed that the legacy of his hero, St. Thomas More, be considered as a “prime example” of “the Christian as cretin,” because he “was not seeing with the eyes of men, but with the eyes of faith.”3 He continued, “My point is not that reason and intellect need to be laid aside. . . . A faith without a rational basis should be laid aside as false. . . . What is irrational is to reject a priori the possibility of miracles in general and the resurrection of Jesus Christ in particular.”4
Little surprise, given these and other speeches on Catholicism and Christianity, as well as his pro-religion decisions on the Court, that when Boston University religion professor Stephen Prothero assembled a list of the dozen most influential Catholics in America, Scalia was second after Chief Justice John Roberts. Their four other Catholic Court colleagues were listed right behind them. Prothero explained that of these six, the most activist was Scalia, because “Justices are supposed to stick to interpreting the law rather than making it, especially if they adhere to the judicial philosophy of ‘original intent,’ but I’m not buying it. When it comes to ‘judicial activism,’ there are really only two kinds of judges: those who know they are acting and those who wrongly imagine they are not.”5
• • •
When the Court considered that term the issue of the use of new technology to conduct a search and seizure under the Fourth Amendment, Scalia used the opportunity to demonstrate how his originalism theory should be applied. In January 2012, the Court announced its decision in United States v. Jones, a case involving a District of Columbia nightclub owner, Antoine Jones, who was convicted of “trafficking in narcotics” on the basis of information that the D.C. police and the FBI had gathered by placing an electronic GPS device inside the back right bumper of his wife’s Jeep Grand Cherokee without benefit of a search warrant.6 Using this device, the police tracked the car’s movements for twenty-eight days, at one point even returning to replace the battery in the GPS device. Thanks in part to the two thousand pages of travel information that was compiled using the device, Jones was convicted.
Ironically, the Court’s majority opinion for a Fourth Amendment case dealing with some of the most modern search technology was assigned by Chief Justice John Roberts to Scalia, who argued that the “public meaning” of the Constitution’s Bill of Rights in 1791 should be used to decide the matter. Scalia had already shown in 2001 that his originalism interpretation of the Fourth Amendment did not allow for intrusive new search and seizure technology. Kyllo v. United States examined the use of a thermal imaging camera to determine that a suspect was using an upstairs room in his house as a greenhouse for growing marijuana. Scalia ruled that since the government was using technology “that is not in general public use,” which allowed the authorities “to explore details of the home that would previously have been unknowable without physical intrusion,” the Framers would have regarded it as a search covered by the Fourth Amendment and subject to the search warrant requirement.7
Could this theory be carried over to denying the authorities the power to place a tracking device on the undercarriage of a car parked on a public street? For Scalia and a unanimous Court, the answer was yes. Based on the historical rights of property and trespass, Scalia argued that the police had violated the Fourth Amendment by “physically occupy[ing] private property for the purpose of obtaining information.” By ruling that this was an unacceptable “search” of an “effect,” or the car, Scalia’s historical reading required the use of a search warrant because “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”8 As his opinion proceeded, it became clear that Scalia’s real objection was to the twenty-eight-day period in which the suspect was being tracked, making it more like the Colonial era “writs of assistance.” Using such writs, the British were allowed to conduct general fishing-expedition searches of colonists’ homes and papers. Had Jones been followed by teams of agents tailing the car and using “visual observation,” or relying on “electronic means, without an accompanying trespass,” the Court might have allowed it. But here they were unacceptably using technology that was attached within the bounds of Jones’s property to gather information about his movements.
By arguing in this manner, Scalia lost a conservative ally. In a concurrence that read in part more like a dissent, Samuel Alito relied on existing Fourth Amendment search and seizure precedent rather than originalism theory to determine whether the suspect had a “reasonable expectation of privacy.” For him, the question was not, as Scalia had suggested, one of “trespassing,” or what “late-18th-century situations . . . are analogous to what took place in this case,” meaning a determination of the “property based” nature of the majority’s approach, but rather, how much privacy a “reasonable person” could expect in this situation. For him, the growing number of tracking devices for cars—EZ Pass, Onstar automobile aid services, and even the capacity to track the cell phones of drivers and passengers in cars—made such use of GPS to track cars more acceptable under the diminishing twenty-first-century “reasonable expectations of privacy” standard. And, Alito added, that standard would continue to be lowered: “The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.”9
For Alito and three others on the Court, rather than using an originalism-based, anti-trespass rule to ban the use of GPS tracking entirely, “The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” By using that as a rule, Alito envisioned a shifting standard based on the length of time of the search: “In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.”10
To Scalia’s dismay, Alito reserved the right to adjust his decision even more in favor of the police in future cases, depending on “whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy.”11 While Alito did not define “extraordinary offenses” or explain how long he would allow such tracking based on the increasing severity of the crimes that were being investigated, it was clear that he subscribed to a shifting and diminishing right to privacy.
In many ways, Scalia had won a series of battles—originalism was the theory to which all of the justices reacted—but he was losing the war as the new generation of conservatives on the Court either adopted unique versions of the theory, as Clarence Thomas had done, or rejected Scalia’s variation, as Alito and John Roberts seemed to be doing.
• • •
This case and others that term were dwarfed in the spring of 2012 when the Court heard arguments in three cases testing the constitutionality of the 2010 Patient Protection and Affordable Care Act, the landmark health care reform law often referred to as the ACA but more popularly known as Obamacare.12 In the most controversial political case since the 2000 Bush v. Gore, and the biggest economic case since the 1937 Court-packing episode, the Roberts Court was facing a political crisis of its own making by accepting this case during an election year. Largely as a consequence of the public perception of its political decision making, and the controversies over the justices’ off-the-bench activities, in a March 2012 Bloomberg News poll, 75 percent of the respondents believed that the Court’s decision on the health care reform law test would be more “influenced” by “politics” than “based solely on legal merits.”13
With the Court in a precipitous free fall in its public support, it faced a renewed attack from the legal academic community, the third such attack in just over a decade. Duke Law professor Paul D. Carrington headed another group of one hundred law school professors who were proposing a revolutionary “term limits” reform plan for the Supreme Court. Under this proposal, Congress would impose by law a fixed term of service for justices. A new justice would serve for a maximum of eighteen years, with a new member being appointed every two years, and the two most recently retired jurists serving in a sort of emeritus status, charged with sifting through appeals for the Court to hear and serving on cases in which the Court’s membership was reduced because of recusals. This would maintain an ideological balance on the Court as each president would make two appointments per term of office. The proposal had zero chance of being passed by the partisan, stalemated Congress, but it did show how precarious the Court’s political posture had become.14
It was in this shifting public relations landscape, with the presidential primaries already under way, that the Court considered the health care cases. Given the partisan lineup of the Court, the possibility now existed that five conservative justices appointed by Republican presidents could overturn the singular achievement of a first-term Democratic president and a Democratic-controlled Congress, with four liberal justices appointed by Democrats in dissent. If the Court divided like this, along partisan lines on such a controversial issue, it risked making the justices appear even more political than they were in Bush v. Gore. Regardless of how the Court ruled, disappointed partisans on either side would almost certainly attack the result.
It was just this kind of situation, possibly endangering the Court’s public support, that Chief Justice John Roberts had said that he would seek to avoid in his Georgetown Law School graduation address in 2006. In his quest for achieving “a greater degree of consensus on the Court,” Roberts had argued, he sought “unanimity, or near unanimity” among the justices, a “greater coherence and agreement about what the law is,” to have “each member on the Court be open to the considered views of the other,” and to have the justices “work together to function as a Court in deciding the cases, and in crafting the opinions.”15 Chief among these goals, though, was a final, unstated rule: “When in doubt: find a way to save the Court from partisan attack by voting to limit the reach of controversial decisions.” These were Roberts’ Rules of Order, and now the question was whether, and how, these rules might operate in the cases challenging the Obama administration’s new health care law.
The three health care law cases coming before the Court raised several different issues. Did the Court have the constitutional power under the federal 1873 Anti-Injunction Act to hear a taxation case even though the taxes had not yet been imposed and collected? Did the federal government have the constitutional power under the interstate commerce clause and the federal taxing and spending power to pass such a massive health care reform law? Did the federal government have the power in opposition to the Tenth Amendment to compel the states to change and increase their Medicaid payments and serve more citizens? And, finally, if any portion of the law was ruled unconstitutional, was there a written, or implied, “severability clause” that would allow the rest of the law to stand?
Among all of these arguments, the key issue before the Court was the constitutionality of the law’s controversial funding mechanism, the “individual mandate,” or what the law called a “shared responsibility payment.” This provision was based on a Massachusetts health care act passed, ironically, under Republican governor Mitt Romney, that compelled citizens’ participation in the program by requiring them to either purchase health insurance or pay a penalty, which some regarded as a tax. Only with the full participation of everyone, including younger, healthier citizens, in the insurance pool would there be sufficient revenue to fund many aspects of the program, including the newly mandated coverage to customers with pre-existing conditions that made them more expensive to insure. Without the “individual mandate” funding mechanism, many believed the health care reform plan would be unsustainable.
During an extraordinary three days of oral argument from March 26 to March 28, the solicitor general, Donald B. Verrilli Jr., argued that congressional authority supporting the law came from Article I, Section 8 of the Constitution, granting Congress the power to regulate interstate commerce, and the power to tax and spend. The Necessary and Proper Clause, as it is known, further allowed the government to do whatever was necessary to regulate anything that “significantly affects” interstate commerce and the taxing powers. Since the health care industry comprises 17 percent of the American economy, the government argued that it “significantly affected” interstate commerce, and thus was subject to regulation under the Constitution.
But the constitutionality of the individual mandate was another matter. The government argued that, according to the 1942 Wickard v. Filburn case it was constitutional. In that case, a farmer named Roscoe Filburn claimed that wheat he grew in excess of government quotas prescribed by the Agricultural Adjustment Act of 1938 was for his own personal use and not subject to governmental regulation because it had never entered the stream of interstate commerce. The Court ruled otherwise, explaining that each loaf of bread Filburn baked and consumed was one that would not be bought in the market, thus affecting interstate commerce and subject to federal regulation.
By this logic, in the ACA cases the decision of a person not to buy into the health insurance plan could also be seen as affecting interstate commerce. Opponents of the health care reform act argued that the Wickard case did not apply where there is a conscious choice by people not to participate in the health care plan at all. In this interpretation, there was no commerce, so the Constitution could not govern it. Supporters of health care reform responded that the market for health care was unique because self-insured people inevitably participated in that market with the cost of any of their unpaid health care bills being paid through higher health care costs for the rest of society.
When the argument turned to the constitutionality of the individual mandate, on Tuesday, March 27, Scalia assumed his familiar aggressive argumentative posture. He made clear by the nature and tone of his questioning that he would not be supporting the health care program.
Early in that day’s argument, the discussion turned to the requirement that everyone must participate in the plan, either by purchasing the contract or paying the penalty for not doing so. Justice Anthony Kennedy asked Solicitor General Donald Verrilli, “Can you create commerce in order to regulate it?”
The government’s advocate responded, “That’s not what’s going on here, Justice Kennedy, and we’re not seeking to defend the law on that basis. In this case, the—what is being regulated is the method of financing health—the purchase of health care. That itself is economic activity with substantial effects on interstate commerce.”
With that, Scalia jumped in, asking, “So, any self-purchasing? . . . If I’m in any market at all, my failure to purchase something in that market subjects me to regulation?”
“No. That’s not our position at all, Justice Scalia,” responded Verrilli. “In the health care market—the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement—those who for religious reasons don’t participate, those who are incarcerated, Indian tribes—virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot—people cannot generally control when they enter that market or what they need when they enter that market.”16
Seeking to better understand the power of the government to use law to shape commercial markets, various members of the Court turned to a series of hypotheticals. If the government can compel the purchase of health care insurance, Chief Justice Roberts began, what about compelling citizens to buy other products for their own welfare? “It seems to me, [that it] 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. . . . So, 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?”
Throughout the argument, the solicitor general had trouble clearly articulating why the health care market was different: “No, Mr. Chief Justice. I think that’s different. It’s—we—I don’t think we think of that as a market. This is a market. This is market regulation. And, in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won’t be able to control what they need when they enter.”17
Verrilli risked losing the pivotal fifth vote on this case when Anthony Kennedy asked, “I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”
Verrilli tried to argue that the more governmentally deferential “reasonableness” interpretive test was appropriate here: “Congress has the authority under the commerce power and the necessary and proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market, because this is a market in which . . . virtually everybody in society is in this market. And you’ve got to pay for the health care you get, the predominant way in which it’s—in which it’s paid for is insurance, and—and the respondents agree that Congress could require that you have insurance in order to get health care or forbid health care from being provided.”18
In what would become one of the most talked-about exchanges in the three days of arguments, Scalia now seized on an opening for persuading Kennedy to join him in opposition to the law. Drawing from an example that had been floating in the newspapers the previous week, Scalia sought to show that using the solicitor general’s logic the government could compel other kinds of purchases: “Could you define the market—everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”
Verrilli responded: “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—and seek to obtain a product or service, you will get it even if you can’t pay for it.”
Scalia interrupted at that point: “Is that a principled basis for distinguishing this from other situations? . . . It’s a basis that explains why the government is doing this, but is it—is it a basis which shows that this is not going beyond what—what the—the system of enumerated powers allows the government to do?”
“Yes, for two reasons,” responded Verrilli. “First, this—the test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect on interstate commerce? The way in which this statute satisfies the test is on the basis of the factors that I have identified.”19
Moments later, Justice Kennedy asked the central question challenging the government’s use of such an individual mandate to compel a purchase: “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?”
Verrilli tried to avoid the trap of arguing for an all-powerful government using its interstate commerce power to regulate every phase of American life: “Yes. The—the rationale purely under the Commerce Clause that we’re advocating here would not justify forced purchases of commodities for the purpose of stimulating demand. We—the—it would not justify purchases of insurance for the purposes—in situations in which insurance doesn’t serve as the method of payment for service.”20
Later in the argument, Scalia tried to shape the day’s narrative with the kind of anti-governmental regulation argument that others later would say he was lifting from the Tea Party political platform. “There was no doubt that what was being regulated was commerce. And here you’re regulating somebody who isn’t covered,” Scalia said to Verrilli. “By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it, and that’s—that’s different from regulating in any manner commerce that already exists out there.”
The solicitor general responded: “Well, to the extent that we are looking at the comprehensive scheme, Justice Scalia, it is regulating commerce that already exists out there. And the means in which that regulation is made effective here, the minimum coverage provision, is a regulation of the way in which people participate, the method of their payment in the health care market. That is what it is.”
Moments later, Scalia pressed on the image of an unlimited government, saying, “In addition to being necessary, it has to be proper. . . . And that’s what all this questioning has been about. What—what is left? If the government can do this, what—what else can it not do?”21
Near the end of his argument, with Verrilli trying unsuccessfully to reserve the remainder of his time to argue, Scalia insisted on consuming it with what he thought was the winning argument for the day’s debate: “You’re saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause, blah, blah, blah, it really doesn’t matter. This is a tax and the Federal Government could simply have said, without all of the rest of this legislation, could simply have said, everybody who doesn’t buy health insurance at a certain age will be taxed so much money, right?”
Upon hearing that, Verrilli thought he had the advantage in this verbal chess game: “It—it used its powers together to solve the problem of the market not—providing affordable coverage . . .”
“Yes, but you didn’t need that,” pressed Scalia, speaking over him. “You didn’t need that. If it’s a tax, it’s only—raising money is enough.”
“It is justifiable under its tax power,” answered Verrilli.
With that, Scalia thought he had made his point, closing with a dismissively curt: “Okay. Extraordinary.”22 After the term ended, even Scalia’s good friend on the Court Ruth Bader Ginsburg would gently tease him about closing his questioning of the solicitor general with the use of the sarcastic “Extraordinary.”23 But, Verrilli’s “Plan B” argument, justifying the program’s constitutionality by its power to tax, as opposed to its interstate commerce powers, would have more supporters than Scalia realized.
During day three of the six hours of argument, on Wednesday, March 28, the question turned to whether the remainder of the law could remain in force if one or more sections of it were ruled unconstitutional by the Court, using what is called a “severability clause.” Scalia, however, was much less inclined to leave to Congress the job of legislating a repair to the law he seemed ready to overturn. In a question to former Bush administration solicitor general Paul Clement, one of his former law clerks, Scalia went far beyond the realm of the legal briefs in the case to ask about Congress’s power to limit the effect of a possible Court overturn of the law: “[I]f we struck down nothing in this legislation but the—what’s it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay? 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. That can’t be right.”
Scalia got a hearty laugh in the courtroom, but he did so with a puzzling reference to a failed negotiating ploy by conservative Democrat Ben Nelson of Nebraska. After threatening to filibuster the bill because it did not contain some restrictions on federal funding for abortion, Nelson offered to trade his “yes” vote on the bill with Majority Leader Harry Reid in return for exempting his state’s residents from increased Medicaid taxes. Nicknamed the “Cornhusker Kickback,” the resulting public uproar over the deal caused Nelson to withdraw his request. Clement, though, played the question straight: “Well, Justice Scalia, I think it can be, which is the basic proposition, that it’s congressional intent that governs. Now everybody on this Court has a slightly different way of divining legislative intent. And I would suggest the one common ground among every member of this Court, as I understand it, is you start with the text. Everybody can agree with that.”24 Everybody, that is, except for the critics of Scalia’s questioning, who noted that this “Nebraska kickback” was never part of the final law’s text.
Scalia’s overtly partisan, and at times comedic, behavior during the oral arguments for this case raised serious questions for many.25 Linda Greenhouse described Scalia’s behavior in the oral arguments as “clownish” and “channeling the Tea Party from the bench.”26 By calling into question the Court’s behavior in these arguments as “amateur economists” and “amateur political scientists,” Greenhouse expressed the fear that the Court was drifting away from the “hypothetical Court” consisting of “justices [who] dispassionately go about applying law to the facts.” Slate’s Matthew DeLuca asked, “Is Roger Ailes (of Fox News) clerking for Supreme Court Justice Antonin Scalia?” in a piece entitled “Did Scalia Parrot Fox News During Health Care Arguments?”27 Even former Reagan administration solicitor general Charles Fried, a conservative, said that Scalia’s “questions have been increasingly confrontational,” and “he came across more like an advocate.” Whatever one might say, commentators were talking about his arguments and his agenda.
• • •
By late June, while the country awaited the health care decision, Scalia found a way to remain in the spotlight. The occasion was the announcement of a decision on the constitutionality of an Arizona anti-immigration law called Arizona v. United States. Known as the Support Our Law Enforcement and Safe Neighborhoods Act, the law was passed in 2010 by a state under siege from illegal immigrants flooding across its borders from Mexico because a stalemated Congress had not been able, or willing, to pass a comprehensive federal immigration law. With most of the federal immigration interdiction funds being spent in California and Texas, Arizona had crafted a law to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States,” through the use of “an official state policy of attrition through enforcement.” Three of the law’s provisions made nonregistration by aliens with the federal government a state misdemeanor, made the seeking of work by aliens a state misdemeanor, and empowered state police to make warrantless arrests of suspected aliens if the police had probable cause that an offense had been committed that would subject that person to removal from the United States. In perhaps the most controversial part of the law, state police were also empowered to ask for the immigration papers of any person based upon “reasonable suspicion” that the person might be an illegal alien. The reasonable suspicion standard, taken from Fourth Amendment search and seizure case law, is much lower than probable cause. As a result, this portion of the law permitted racial profiling by the police for any Hispanic they chose to challenge, and allowed for an indefinite detention of those arrestees in order to afford the police a chance to check their immigration status.
The issue in this case was whether the federal government’s foreign policy powers under the Constitution gave it preemptive, and thus exclusive, powers over the states to legislate in this area. The majority opinion resolving the issue in favor of federal power was written by Anthony Kennedy, speaking for a bipartisan voting bloc consisting of Chief Justice John Roberts and three of the Court’s liberals, Justices Breyer, Ginsburg, and Sotomayor. (Justice Kagan had recused herself because the issue had been before her as solicitor general.) The majority ruled that the Article I, Section 8 power of the federal government in foreign policy and immigration, together with the federal Supremacy Clause of Article IV of the Constitution, saying that the federal Constitution, laws, and treaties “shall be the supreme law of the land,” precluded state governments from enacting their own immigration policy by using their sovereign powers under the Tenth Amendment to protect their citizens from outsiders.
The national nature of the policy questions here, and the difference in the powers of the two levels of government, made it necessary for the federal government to have the exclusive power to act. Kennedy and the majority argued that the “dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.”28 Further, they said, “Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders.”29 In this situation, contrary to the Arizona law, “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” The Arizona law “would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens.” By allowing a warrantless arrest of suspected aliens based on a crime that would make them removable, “This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.” In conclusion, Kennedy argued, “Decisions of this nature touch on foreign relations and must be made with one voice.”30 This ringing endorsement of total federal power in the immigration field ended with a plea by the Court that Arizona not “pursue policies that undermine federal law.”
In dissent, Scalia turned Kennedy’s argument on its head, arguing from a states’ rights philosophy to oppose the view of a preemptive, “exclusive” federal power flowing under the Constitution to deal with immigration. Instead, he argued that “The United States is an indivisible ‘Union of sovereign States.’ ” Blocking Arizona’s immigration law, Scalia argued, “deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.” Because this was true, Scalia wrote that the “power to exclude has long been recognized as inherent in [state] sovereignty.” Using this “power to exclude,” Scalia explained, “in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks.”31
Scalia did concede that the “primary responsibility for immigration policy has shifted from the States to the Federal Government,” and that state legislation in this area could not act where it is “prohibited by a valid federal law,” or “conflict[s] with federal regulation.” However, even after allowing for the fact that the federal government was preeminent in the foreign affairs area, Scalia added, “the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers. . . . Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals.”32 Scalia concluded, “Arizona is entitled to have ‘its own immigration policy’—including a more rigorous enforcement policy—so long as that does not conflict with federal law.” For him, there was no reason why Arizona could not “make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present” in that state.
For Scalia, this was a case of the state of Arizona exercising its own sovereign powers to protect its citizens and borders given the federal government’s “willful blindness or deliberate inattention to the presence of removable aliens in Arizona.” With the state believing that the “federal priorities are too lax” in the immigration field, “The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition.”33
Had Scalia stopped there, the discussion of this case would have ended quickly. But instead, like Yellowstone Park’s Old Faithful, he erupted once again from the bench, just as he had done so many times before when things were not going his way. The outburst came without warning, when the justices were announcing their decisions in this case from the bench by reading their shortened bench statements.
After Anthony Kennedy announced the Court’s judgment in the case on Monday, June 25, Scalia followed by reading his unusually long eleven-minute oral dissent from the bench.34 His text was drawn largely from the final four pages of his published dissent, in which he combined his ardent pro–states’ rights view with a severe criticism of the federal government’s lack of an immigration policy. The statement contained all of the highly quotable attacks in his full dissent designed to catch the attention of the Supreme Court press corps. He began by recasting the state-versus-federal sovereignty balance in the immigration area: “Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift.” Scalia then attacked President Obama’s recent executive order to suspend the deportation policy for the approximately 1.4 million illegal immigrants under the age of thirty, while they underwent background checks as a potential path to legal status. “The husbanding of scarce enforcement resources can hardly be the justification for this,” Scalia said, “since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement.”35
Scalia then went far beyond the record in the briefs for this case to add: “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. 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.”36 As Scalia read his statement, Justice Elena Kagan “continued to look uneasy as [he] went on scolding Justice Kennedy.” Just why a member of the high bench was critiquing a presidential policy that was not then before the Court boggled the mind of Court reporters such as Slate’s Dahlia Lithwick, who wrote that this was “Perhaps the first originalist reading of a presidential press conference.”37
Scalia then turned to his originalist reading of the Constitutional Convention for support. A nation of states must have the power, he argued, to protect their own borders against “A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.” That being the case, Scalia offered an interesting image from the Founding Era, asking:
Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.” . . . Now, imagine a provision . . . which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits from Independence Hall.38
Scalia ended by siding with the state’s point of view here. “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so.” For him, sovereign states had the power to fill in the gap left by a stalemated federal government. “Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”39
Former Clinton administration solicitor general Walter Dellinger later wrote in Slate that this was a very different Antonin Scalia from the one who had argued in his dissent to the 1988 Morrison v. Olson independent counsel case, and throughout the rest of his career, for near absolute executive power: “[Scalia] got one thing right in his bench statement in this week’s immigration case. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. Motion seconded.”40 Indeed, Scalia’s state-centered playbook now seemed to be drawn more from the failed Articles of Confederation, the nullification movement of the 1830s, and the state secession movement that launched the Civil War than from the modern Constitution.
Scalia’s attack on President Obama’s policies was also too much partisanship from the bench for some in the legal academy and the press to accept. Law professor Adam Winkler of UCLA wrote: “Scalia has finally jumped the shark. He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution. . . . It’s mind-boggling to see Scalia rail against the Executive’s power to enforce the law. That is the core role of the president. He, not the state of Arizona, is the enforcer of our laws. Due to limited resources, every executive—state, federal, municipal—must make choices about how aggressively to enforce the law. . . . Scalia is an originalist: he has his own original view of the Constitution, ungrounded in history and steeped in conservative politics.”41
Columnist E. J. Dionne of The Washington Post, in an article titled “Justice Scalia Needs to Resign from High Court,” recalled the Cheney duck hunting episode and the Fribourg “War on Terror” speech, before saying of this harsh Arizona immigration case announcement: “It was a fine speech for a campaign gathering, the appropriate venue for a man so eager to brand the things he disagrees with as crazy or mind-boggling. Scalia should free himself to pursue his true vocation. We can then use his resignation as an occasion for a searching debate over just how political this Supreme Court has become.”42 The Post editorial board agreed, chastising “Scalia’s Partisan Outbursts.” After citing the “frivolity” in Scalia’s oral argument questioning in the health care case, the editorial board concluded:
Justice Scalia is nothing if not intelligent; his unpredictable approach to certain issues, especially free speech and criminal law, mark him as a less-than-doctrinaire conservative. . . . But his lapses of judicial temperament—bashing “a law-profession culture, that has largely signed on to the so-called homosexual agenda” in a written dissent, or offering views on this and that in sarcastic public speeches—detract from the dignity of his office. They endanger not only his jurisprudential legacy but the legitimacy of the high court.43
Perhaps the most stinging rebuke, though, came from one of the critics of his Heller gun control decision, Judge Richard Posner. He did not like that Scalia had sounded like a political candidate in criticizing a sitting president on public policy in an election year: “The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads. The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case. It seems rather a belated development to figure in an opinion in the case.”44 Scalia, as always, was unfazed by criticism.
• • •
Scalia was saved from further journalistic skewering by the announcement three days later of the landmark health care case. On June 28, signaling his disappointment with the decision about to be revealed, Scalia entered the courtroom along with the rest of his colleagues precisely at 10:00 A.M., “look[ing] downward morosely, as if attending a wake,” wrote one journalist, while his colleague Stephen Breyer entered bearing “a broad smile on his face.”45 After disposing of two other cases, and with the audience now silent, Chief Justice Roberts, described by one reporter as having bloodshot eyes and appearing very tired, began reading his majority opinion in the health care cases “in an oddly perfunctory, hurried tone, as if his main goal was to be done with it.” As he read, Scalia’s “sour look persisted.”46
In writing his opinion, Roberts walked an intellectual tightrope, agreeing with the four liberals in upholding the law. On the first issue before them, whether the Anti-Injunction Act prevented the Court’s decision because no tax had yet been collected, Roberts wrote that the law, which only applied to the nonpayment of taxes, did not come into play. He ruled: “Congress . . . chose to describe the ‘shared responsibility payment’ imposed on those who forgo health insurance not as a ‘tax,’ but as a ‘penalty.’ . . . There is no immediate reason to think that a statute applying to ‘any tax’ would apply to a ‘penalty.’ ” And so, Roberts concluded, since the individual mandate was not a tax, the Court could rule on merits of the case because “The Anti-Injunction Act therefore does not apply to this suit.”47
Roberts then explored whether the law, with its individual mandate, could be upheld on the basis of the federal interstate commerce power. Litigants had asked whether the federal government had the power to regulate the entire health care insurance industry under the interstate commerce power, plus the Necessary and Proper clause of Article I, Section 8, Clause 18. Carefully parsing his opinion on this issue, Roberts took a different approach from others in the majority, all of whom supported the government’s power to regulate the health care industry. To the contrary, just as the four conservatives would argue in dissent, Roberts could find no acceptable argument to support the interstate commerce theory because “The individual mandate . . . 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.” For him, giving this power to the government “would open a new and potentially vast domain to congressional authority.”48 Roberts explained: “The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.”49 Roberts concluded on this question: “The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.”50 For him, “the proximity and degree of connection between the mandate and the subsequent commercial activity is too lacking to justify an exception of the sort urged by the Government.”
Since he saw no delegated interstate commerce power justification, Roberts then dismissed the Necessary and Proper Clause argument as well. Misled by the way Roberts’s opinion was structured, at this point in their live television analysis of the decision, reporters for both CNN and Fox News announced that the Obamacare law’s individual mandate had been declared unconstitutional on interstate commerce clause grounds.51 But the Chief Justice had a surprise for everyone as his opinion continued.
Roberts then switched sides again, and allied with the four liberals to uphold the overall health care law by adopting the solicitor general’s “backup” argument, to “read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.” This allowed Roberts to rule that the federal government’s taxing and spending power made the law constitutional. Having already ruled that the individual mandate was a penalty instead of a tax for the Anti-Injunction argument, the chief justice now turned his own argument on its head. Examining precedents and the nation’s policy history, Roberts found that the use of this constitutional taxing power was “intended to affect individual conduct,” and in so doing was “plainly designed to expand health insurance coverage,” thus making the law constitutional. As Roberts put it, “taxes that seek to influence conduct are nothing new.”52 He concluded: “Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. . . . But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.”53 And so, the law was upheld.
The conservatives did win one part of the case. On the issue of whether the federal government could withhold federal funds from states that failed to expand their Medicaid programs in line with the Affordable Care Act guidelines, Roberts, writing for a majority of seven justices, including the four conservatives and liberals Stephen Breyer and Elena Kagan, said it could not. “Permitting the Federal Government to force the States to implement a federal program,” Roberts said, “would threaten the political accountability key to our federal system.” The potential for states to lose all of their federal Medicaid funding as a penalty for noncompliance with the changes was, he explained, “coercive,” and unconstitutionally designed to redirect state conduct. Roberts argued: “In this case, the financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’—it is a gun to the head.” He added: “The threatened loss of over 10 percent of a State’s overall budget . . . is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”54
Rather than following Scalia’s lead and offering his opinion on the political wisdom of the law, Roberts left it to Congress to decide. “We do not consider whether the Act embodies sound policies. . . . Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”55 The political future of the Affordable Care Act would be determined, he was saying, not by the Court but by Congress, as it would be reshaped by the voters in the 2012 election.
Roberts’s Solomonic opinion giving each side a partial victory and a partial defeat surprised many beyond his conservative colleagues. By preventing a conservative majority from overturning President Obama’s greatest legislative achievement, Roberts might have hoped to diminish some of the criticism of the Court as a partisan institution. Despite the narrowness of the voting margin, and the exotic nature of the argumentation, President Obama and the Democrats had all they needed to preserve the law.
With observers in the courtroom still trying to understand what had just occurred, Justice Kennedy read a dissenting opinion authored and, most unusually, signed by him and the three remaining conservative justices: Scalia, Thomas, and Alito. As Scalia had done days before in the Arizona immigration case, in considering whether government can compel “private conduct,” the dissenters began by affirming their allegiance to the Tenth Amendment and state sovereignty, as opposed to the limited, delegated, federal powers: “Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.”56 The four dissenters spoke in language and imagery that sounded like Scalia’s in explaining that the federal government had no power to regulate private activity. For them, to argue that the failure to act “affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”57 For more than forty pages, and without ever acknowledging it, the dissenters mirrored Roberts’s argument in saying that the federal interstate commerce power would not support the individual mandate penalizing nonpurchase of federal health insurance.
When they turned to the taxing and spending power issue, having seen the majority duck the Anti-Injunction Act by saying that the law created a penalty rather than a tax that would have been covered, the dissenters put no stock in Roberts’s subsequent characterization of the penalty as a tax for the constitutional purpose of upholding the law: “But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.”58 In one of the opinion’s most persuasive sections, after pointing out that the law called the mandate a “penalty” eighteen times, and placed it in the “Operative core” of the law, rather than the “Revenue Provisions” section where a discussion of tax funding for the plan would normally be found, the dissenters concluded: “For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” The dissenters thus dismissed Solicitor General Verrilli’s arguments and those of Chief Justice Roberts. “What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.”59
Not until two-thirds into the dissent did it become clear just how much the four conservatives were disagreeing with the chief justice and the majority. Having also rejected the law’s “coercion” of the states to participate in the Medicaid expansion, as a “power and authority [that did] not rest with this Court,” they argued: “The two pillars of the Act are the Individual Mandate and the expansion of coverage under Medicaid. In our view, both these central provisions of the Act—the Individual Mandate and Medicaid Expansion—are invalid.”60 Since for them the provisions of the law were not severable, that meant that the entire law should be overturned.61 In a powerful conclusion that sounded very much as if it came from the libertarian-oriented Kennedy, the four dissenters concluded:
The Framers considered structural [separation of powers] protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it. For the reasons here stated, we would find the Act invalid in its entirety.62
One was hard-pressed to find anyone in either the national press or among the internet Court commentators who had foreseen that it would be Chief Justice John Roberts who would join the liberals to save the ACA, and everyone scrambled to explain why.63 While liberals praised the chief for his statesmanship and bipartisanship, conservatives alternated between complaining that Roberts had betrayed them and carefully parsing his opinion for signs that he had laid the groundwork for future restrictions on the Interstate Commerce Clause. Whatever the view of the majority opinion, Roberts had made clear by his clever positioning on the case that he was now leading the Supreme Court, not Anthony Kennedy.64
• • •
Three days after the announcement of the health care decision, CBS television reporter Jan Crawford, relying on leaks about the case from the normally tightly sealed Supreme Court building, broke a surprising story that “Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law. . . . Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said.”65 Crawford reported that after Roberts began writing the conservatives’ majority opinion overturning the law, he became “wobbly” over his vote with that side, possibly after reading “countless news articles in May warning of damage to the court—and to Roberts’ reputation—if the court were to strike down the mandate.” One conservative member of the Court sought an explanation from Roberts for his decision in this case, but he “was unsatisfied with the response.”66
But the battle was not done, Crawford reported, as Roberts “engaged in his own lobbying effort—trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as ‘arm-twisting.’ ” At some point, Kennedy finally gave up on Roberts’s vote, and the four dissenters “handed him their own message which, as one justice put it, essentially translated into, ‘You’re on your own’ and [they] were no longer even willing to engage with him in debate.”
Within a week, subsequent news reports and Twitter postings, relying on other leaks from inside the Court building, speculated that Roberts had authored both the majority opinion, and, depending on who was reporting, anywhere from one-quarter to three-quarters of the published dissent when it was initially a conservative majority opinion authored by him striking down the law.67 It seemed very likely that, following the example of Charles Evans Hughes during the Court-packing crisis of 1937, who saved the independence of the Court by reversing his opinions in two cases and upholding Roosevelt’s New Deal legislation, Roberts had executed a second “switch in time that saved Nine.” Time magazine was so stunned by this turn of events that just three weeks after its cover story had hailed the emergence of the “Kennedy Court,” the magazine’s cover now read, “Roberts Rules.”68
Whatever the truth about the Court’s votes in this case and just how the opinion was written, the flood of legal cyber chatter provided yet more evidence that the health care law decision had placed the Court in a partisan political cauldron. On July 18, a little over five weeks after the public opinion polls for the Court had stood at a historically low 44 percent, the number sank to 41 percent, with another equal number saying that they disapproved of the Court’s work.69
The announcement of the health care decision marked a turning point for the Supreme Court. From all of the chief justice’s rules that he had discussed in his Georgetown Law graduation speech, there was one more that he had learned from watching the travails of his mentor, William Rehnquist: the chief justice must take control of his Court. And in the health care case, that he had done.
Roberts made it clear that in the future the Court could, and would, go where his vote would take it—even as much as the vote of the swing justice. From then on, there would be two unpredictable voters on the Court. Anthony Kennedy would continue to vote in line with his ideological perspective, occasionally abandoning his usual conservative views to vote as a pro–individual rights libertarian on some social issues. John Roberts would occasionally vote based on his jurisprudential perspective, choosing at times to abandon his conservative philosophy in order to keep his activist conservative brethren from going too far to the right and taking his Court over a cliff. Meanwhile an aging and uncompromising Antonin Scalia, who later would say that the Affordable Care Act case was the “most wrenching decision” of his career, would become less and less influential on the Court’s sidelines, casting predictably conservative votes and writing scorching dissents whenever either, or both, of these men dictated decisions by the Court that he did not like.70